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AGO 1950 No. 409 - December 28, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

PROPOSED LEGISLATIVE CHANGES IN INITIATIVE 178

1. The legislature cannot amend the provisions of Initiative 178 by setting the maximum or ceiling values on home or personal property.

2. The legislature cannot prescribe administrative procedures to be followed by the department in carrying out the provisions of Initiative 178.

3. The legislation would be invalid legally, but would be declaratory of legislative policy.

4. The legislature can enact legislation on the subject of relative responsibility.

5. The provisions of Initiative 172 which are merely referred to but are not amended by Initiative 178 are subject to amendment or repeal by the legislature.

6. The two year limitation in the constitution applies only to those provisions of Initiative 172 which were amended by Initiative 178.

7. The legislature can and should enact legislation relating to the new category of Federal aid assistance.

8. The provisions of Initiative 178 relating to eligibility for unemployable persons does not apply to disability assistance.

9. The legislature can change the statutory organization of the Department of Social Security, as well as the name of the department.

10. The legislature cannot enact legislation relating to residence requirements.

11. See opinion of this office to the Department of Social Security dated November 14, 1950.

12. See opinion of November 20, 1950, supra.

13. The term "local health officer" means the officer actually exercising jurisdiction over a given local area.

[[Orig. Op. Page 2]]

14. See opinion of November 14, 1950, supra.

15. The legislature can enact legislation clarifying the use of the two-mill levy.

16. See opinion of November 14, 1950, supra.

17. See opinion of this office to the Department of Health dated December 29, 1950.

18. The State Department of Health exercises administrative control over the entire medical care program.

19. Section 9 is addressed to the legislature and is directory only.

20. Equal rateable reductions must be made in all categories of assistance within the same appropriation item.  Categories in different appropriation items can be treated separately, the percentage of rateable reduction to be based upon the amount of money appropriated.

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

                                                               December 28, 1950

Legislative Council
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 409

Attention:  !ttA. B. Comfort, Chairman,
            Subcommittee on Public Welfare

Gentlemen:

            You have requested the opinion of this office on the following questions concerning the interpretation of Initiative 178, (Chapter 1, Laws of 1951):

            1. Can the legislature supplement the provisions of Initiative 178 by specifically setting maximum and ceiling values on home and personal property or by setting a range within which such values shall be established?

             [[Orig. Op. Page 3]]

            2. Can the legislature in regulating the administrative procedures to be followed by the state department define (a) the procedures to be followed, and (b) the considerations that shall control the exercise of the department's discretion?

            3. If the legislation proposed in questions 1 and 2 were enacted, would it be wholly invalid, controlling upon the department, or declaratory of legislative policy only?

            4. Is the subject of relative responsibility open to legislative action?

            5. Are the sections of Initiative 172 which are not amended but which are cross referenced in Initiative 178 incorporated by reference in the new initiative, or are they open to amendment or repeal by the legislature?

            6. Does the specific amendment of some of the provisions of an initiative by a subsequent initiative, such amendment occurring prior to the expiration of the two year limitation upon legislative action, have the effect of reenacting all of the previous initiative in partially amended form, so that the two year limitation of the constitution applies anew to all of the original and unamended provisions of the prior initiative?

            7. Do the provisions of Initiative 178 preclude the enactment of legislation relating to the new Federal aid category of assistance for permanently and totally disabled persons as established by Public Law 734?

            8. Does section 16 (d) of Initiative 178 relating to eligibility for general assistance of unemployable persons apply to persons who may fall within the new category of aid to the disabled?

            9. Does the adoption of Initiative 178 preclude the legislature from reorganizing the State Department of Social Security, and can the name of the department be changed?

            10. Can the legislature enact legislation qualifying the residence requirements by providing that no person shall acquire residence for the purposes of our public assistance law while living in Washington and receiving assistance from any other state unless that state affords reciprocal treatment to residents of Washington?

            11. Are funds now appropriated for the State Department of Social Security for health care available for expenditure by the State Department of Health after December 7, 1950, or will legislative action be necessary to transfer these funds?

             [[Orig. Op. Page 4]]

            12. Does section 15 (g) of Initiative 178 repeal chapter 139, Laws of 1931, relating to county hospitals of 200 beds or more?

            13. Do the terms "local health officer" and "local health department" of section 15 mean county officers and departments, city officers and departments, or either depending upon which agency is actually exercising jurisdiction over a local given area?

            14. Is the use of the present county two-mill assistance levy prohibited for care of assistance recipients or the medically needy?

            15. Can the legislature enact legislation clarifying the use of the two-mill levy and provide that all or part of it shall be applied as at present to all health care of persons who are a public responsibility?

            16. Can section 15 (a) transfer to the State Department of Health responsibility for the medical care of needy persons who are not assistance recipients, which responsibility is now placed in the counties by Rem. Rev. Stat. 9986.

            17. Does section 15 (h) which provides that funds for health care shall be "* * * made available to counties and districts * * *" each quarter upon the basis of a budget submitted by the county commissioners apply whether or not the State Department of Health has delegated administration of the medical program to a county?

            18. Does the State Department of Health have control over the administration of the medical care program, or does each county or district determine how to procure services as it desires?

            19. Is section 9 of Initiative 178 mandatory or directory only in requiring that appropriations for old age assistance be specifically earmarked?

            20. May categories of assistance supported by the same or by different appropriation items have different rateable reductions applied?

            Our conclusions may be summarized as follows:

            1. The legislature cannot amend the provisions of Initiative 178 by setting the maximum or ceiling values on home or personal property.

            2. The legislature cannot prescribe administrative procedures to be followed by the department in carrying out the provisions of Initiative 178.

             [[Orig. Op. Page 5]]

            3. The legislation would be invalid legally, but would be declaratory of legislative policy.

            4. The legislature can enact legislation on the subject of relative responsibility.

            5. The provisions of Initiative 172 which are merely referred to but are not amended by Initiative 178 are subject to amendment or repeal by the legislature.

            6. The two year limitation in the constitution applies only to those provisions of Initiative 172 which were amended by Initiative 178.

            7. The legislature can and should enact legislation relating to the new category of Federal aid assistance.

            8. The provisions of Initiative 178 relating to eligibility for unemployable persons does not apply to disability assistance.

            9. The legislature can change the statutory organization of the Department of Social Security, as well as the name of the department.

            10. The legislature cannot enact legislation relating to residence requirements.

            11. See opinion of this office to the Department of Social Security dated November 14, 1950 [[Opinion No. 49-51-381]].

            12. See opinion of November 20, 1950 [[Opinion No. 49-51-386]].

            13. The term "local health officer" means the officer actually exercising jurisdiction over a given local area.

            14. See opinion of November 14, 1950, supra.

            15. The legislature can enact legislation clarifying the use of the two-mill levy.

            16. See opinion of November 14, 1950, supra.

            17. See opinion of this office to the Department of Health dated December 29, 1950 [[Opinion No. 49-51-410]].

             [[Orig. Op. Page 6]]

            18. The State Department of Health exercises administrative control over the entire medical care program.

            19. Section 9 is addressed to the legislature and is directory only.

            20. Equal rateable reductions must be made in all categories of assistance within the same appropriation item.  Categories in different appropriation items can be treated separately, the percentage of rateable reduction to be based upon the amount of money appropriated.

                                                                     ANALYSIS

            Subsection (c), Amendment 7 to the State Constitution provides that:

            "* * * No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment.  But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon."

            Accordingly, the legislature cannot amend or repeal any provisions of Initiative 178 for a two year period beginning on December 7, 1950.  A law is "amended" when it is in whole or in part permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose.  Falconer v. Robinson, 46 Ala. 340, 348.

            Section 4 of Initiative 178 provides that the department "shall, by rule or regulation fix maximum values for both a home as defined in paragraph (a) and the personal property and belongings * * *."  Accordingly, it is the opinion of this office that the legislature cannot supplement the provisions of the initiative by setting the maximum or ceiling values for home or personal property.  Nor can the legislature amend Initiative 178 to prescribe what administrative procedures shall be followed by the department and how the department shall exercise its discretion under 178.  Any legislation would be without any legal effect but would be an indication of legislative policy which the Department of Social Security could take into consideration in administering the initiative.

             [[Orig. Op. Page 7]]

            In answer to your fourth question, section 3 of Initiative 172 contained a proviso to the effect that the ability of relatives or friends to contribute to the support of an applicant or recipient is not a resource.  Initiative 178 amended section 3 and specifically left out all reference to relative responsibility, and under the general rule of statutory construction where a law is amended and a material change is made in the wording or an important part is eliminated, it is presumed that the legislature intended a change in the law.  Alexander v. Highfill, 18 Wn. (2d) 733, 140 P. (2d) 277.  Accordingly, the legislature is free to enact legislation putting the principle of relative responsibility into effect if it so desires.

            The 5th and 6th questions are concerned with those sections of Initiative 172 which were not amended but which were referred to in Initiative 178.  The answers to both questions depend in a specific case upon a determination of whether the legislature actually intended to reenact the former section, or was merely following the proper procedure for amendment by publishing the entire section at length.  The form of the statute is the test of its amendatory character.  1 Horack's Sutherland on Statutory Construction, section 1901.  The Supreme Court of our state has enunciated the rule in the case of In re Yakima Amusement Company, 192 Wash. 175, 178, 73 P. (2d) 519, as follows:

            "An amendatory statute which sets out in full all that the statute, as amended, is intended to contain, becomes a substitute for the statute amended.  This does not necessarily mean that the original is abrogated for all purposes.  So much of the original as is repeated in the later statute without substantial change, is not repealed and reenacted, but is continued in force without interruption from the time it was first enacted.  59 C.J. 925.  * * *"

            For example, section 8 of Initiative 178 amended section 16 of chapter 6, Laws of 1949.  Section 16 formerly read as follows:

            "The provisions of this act shall apply in other categories of public assistance in the following manner:

            "(a) The provisions of section 3 (g) and of sections 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall apply equally in all categories of public assistance."

            The same section as amended by Initiative 178 reads as follows:

             [[Orig. Op. Page 8]]

            "Section 16, chapter 6, Laws of 1949, is amended to read as follows:

            "Section 16. (a) The provisions of sections 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 shall apply equally in all categories of public assistance."

            The amendment above deleted the first sentence in the first section and in subsection (a) substituted section 6 for section 3 (g) and made no other changes.  Accordingly it appears that the restatement of sections 8, 9, 10, 11, 12, etc., was necessary in order to accomplish the desired amendment.

            Accordingly, you are advised it is the opinion of this office that the reference to the sections of Initiative 172 in Initiative 178 which sections were not amended does not have the effect of reenacting those sections so that the constitutional limitation against amendment or repeal for a two year period would apply.  The legal effect of such restatement is that those sections continue in force as a part of the public assistance laws of this state, but are subject to amendment or repeal by the 1951 legislature.  The same rule would not apply, however, to those sections where some affirmative action was taken in the later Initiative.  For example, in subsection (a) of section 16, the substitution of section 6 for section 3 (g) is an amendment to chapter 6, Laws of 1949 and has the effect of reenacting section 6 so that the constitutional limitation does apply.

            Public Law No. 734, enacted by the recent session of Congress amended the Federal Social Security Law, and among other things, it established a new category of Federal-aid assistance for permanently and totally disabled persons.  This office, in an opinion dated October 3, 1950, to the Department of Social Security [[Opinion No. 49-51-354]], held that the Department had authority under legislation antedating Initiative 172 to set up a state plan in order to qualify for Federal assistance under the new law.  However, once the state plan is accepted by the Federal Security Agency, all recipients of assistance under the so-called disability assistance program are retroactively recipients of Federal assistance and not recipients of general assistance.  Therefore, the statutes relating to general assistance are no longer applicable and accordingly the legislature should enact legislation defining and clarifying the new category of Federal aid assistance.  In answer to your eighth question, it is our opinion that the provisions of Initiative 178 relating to persons eligible for general assistance as unemployable persons do not apply to disability assistance inasmuch as all recipients of disability assistance are receiving Federal-aid assistance rather than general assistance.  Initiative 178 does not cover the new category of assistance.

             [[Orig. Op. Page 9]]

            Section 3 of Initiative 178 contains the following statement:

            "For the purposes of this act unless the context indicates otherwise, the following definitions shall apply:

            "(a) 'Department'‑-The Department of Social Security"

            By way of contrast, Initiative 172 contained a statement to the effect that "* * * the Department shall be called the Department of Social Security."

            Accordingly, it is our opinion that Initiative 178 used the term Department of Social Security for definition purposes in the act itself, and there was no intent to control what the Department should be called in other public assistance laws.  Thus, the legislature is free to change the name of the department.

            In answer to question 10, section 8 of Initiative 178 provides that a person who has been a resident of the state for one year is eligible for general assistance, and section 5 covers the eligibility for Federal-aid assistance of a person who has been a resident of the State of Washington for at least five years within the last ten.  Any attempt by the legislature to qualify the meaning of the term "residence" would, in our opinion, be an amendment of Initiative 178 and would violate the constitutional provision prohibiting such amendment or repeal within a two year period.

            In an opinion issued by this office on November 14, 1950 [[Opinion No. 49-51-381]], we held that funds now appropriated to the State Department of Social Security for medical purposes could be used by the State Department of Health to provide medical care under a dual control system from December 7, 1950, until the legislature convenes in January.  In that opinion we also held that the initiative does not repeal chapter 139, Laws of 1931, establishing boards of trustees for county hospitals having 200 or more beds, but merely authorized the local health officer to have supervision over such hospitals as is necessary in order to determine whether or not recipients of public assistance and medically indigent persons are receiving medical care according to State Board of Health standards and the rules and regulations.

            The terms "local health officer" and "local health department" as used in the act mean county officers and departments or city officers and departments, depending upon which agency is actually exercising jurisdiction  [[Orig. Op. Page 10]] over a given local area.  In many areas, as a matter of fact, the county health officer and the city health officer are one and the same person.

            In the opinion of November 14, 1950, this office held that Initiative 178 transferred responsibility for care of medical indigents from the county to the State Department of Health.  Accordingly, the two-mill levy authorized under chapter 216, Laws of 1939, can be used only for general assistance.  Inasmuch as Initiative 178 does not amend or contain any reference to the two-mill levy statute, the legislature is free to enact any legislation it desires with regard to the use of the funds from the two-mill levy.

            Section 7 of Initiative 178 provides that on and after the effective date of this amendatory act, the State Department of Health shall be responsible for providing necessary medical, dental and related services to recipients of public assistance and other persons without income and resources sufficient to secure them.  The opinion of this office to the Department of Social Security dated November 14, 1950 [[Opinion No. 49-51-381]], held that the medical care of needy persons who are not assistance recipients but who are covered by Rem. Rev. Stat. 9986, was transferred to the Department of Health by Initiative 178.

            In answer to your question No. 17, it would appear that the basic responsibility for providing medical care is the duty of the Department of Health.  That department is directed "wherever practical * * * to delegate the administration of the medical service program to local county or district health departments * * *."  The later provisions of that section state that "money shall be made available to the counties or districts on a quarterly basis * * *."  Clearly, that provision would be applicable only in those instances where the department has delegated the administration to the local county or district.  See also the opinion of this office dated December 29, 1950, to the Department of Health [[Opinion No. 49-51-410]].

            Section 7 provides,supra, that the Department of Health is responsible for all medical, dental and related services.  In addition, subsection (d) provides that the medical service program shall be administered by the Director of Health; subsection (e) provides that "the Department of Health in providing services shall have the right to procure them in whole or in part to any one or any combination of the following methods * * *."  Thus, the basic administrative responsibility for the medical program rests in the Department of Health.  Accordingly, you are advised that the State Department of Health is responsible for determining how the medical service program shall be operated throughout the state.

             [[Orig. Op. Page 11]]

            The provisions of section 9 of Initiative 178, relating to the earmarking of appropriations for old age assistance, is directed to the legislature and is advisory only.  Funds necessary to carry out the provisions of the initiative could have been specifically appropriated in the initiative, but inasmuch as no appropriation was made, the power of the legislature to appropriate as it sees fit is not subject to any control.

            In answer to your last question, the use of rateable reductions by the Department of Social Security in the various categories of assistance will depend entirely upon the method used by the legislature in setting up the appropriations.  The word rateable means a proportionate or equal rate or share.  Accordingly, it is our opinion that equal rateable reductions must be made in all categories of assistance within one appropriation item.  However, where each category of assistance is a separate appropriation item, the percentage of rateable reduction would not necessarily be equal but would depend upon the amount of money appropriated to each category.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General

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