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AGO 1950 No. 379 - October 30, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

REFERENDUM ON LEGISLATION TO REVISE WELFARE LAWS

Legislation to revise welfare laws can be enacted by the 1951 legislature which will not be subject to referendum.

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                                                                October 30, 1950

Representative Charles W. Hodde
Colville
Washington                                                                                                              Cite as:  AGO 49-51 No. 379

Dear Sir:

            In answer to your request for an opinion as to whether in the event of defeat of both initiative measures 176 and 178 in the forthcoming election a referendum petition could prevent an act of the legislature revising existing public welfare laws from becoming effective until after the election in 1952, it is our conclusion that legislation modifying existing welfare laws in such manner as to relieve the state's financial crisis or to provide immediately essential care to the needy will be exempt from referendum by a legislative declaration of an emergency.

                                                                     ANALYSIS

            It is not every law passed by the legislature which is subject to referendum.  Section 1b, Article II, of the State Constitution (Amendment 7) reads in part:

            "The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature,except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions * * *" (Emphasis supplied)

             [[Orig. Op. Page 2]]

            A mere declaration by the legislature that an act is an emergency measure does not make it so.  Our Supreme Court has held that if the emergency declaration is false an act is nevertheless subject to referendum.  State ex rel. Kennedy v. Reeves, 22 Wn. (2d) 672, 157 P. (2d) 718.  However, the court has held that in cases where there is an emergency or the support of the state government is involved, the measure is exempt from referendum even without a declaration of emergency.  InState ex rel. Pennock v. Reeves, 27 Wn. (2d) 739, 179 P. (2d) 961, our Supreme Court said:

            "InState ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162, we held that a law providing for the support of the state government and its existing institutions is not subject to referendum, even if the legislature makes no declaration of emergency in such act.

            "InState ex rel. Robinson v. Reeves, 17 Wn. (2d) 210, 135 P. (2d) 75, 146 A.L.R. 280, we held that, under the seventh amendment to the state constitution, all acts passed by the legislature are subject to the referendum except those in exercise of the police power and those providing for the support of the state and its existing institutions.  In other words, a legislative declaration that the measure is necessary for the support of the state government is not essential to protect the measure from referendum if the measure in fact is one for the support of the state government.

            "If there is any section or portion of a statute which the court can say is an emergency, a referendum cannot be permitted of the entire act or of all of the act except the emergency portion of the act.  State ex rel. Short v. Hinkle, 116 Wash. 1, 198 Pac. 535.  See, also,State ex rel. Boatmen's Nat. Bank v. Webster Groves Sewer Dist., 327 Mo. 594, 37 S.W. (2d) 905."

             [[Orig. Op. Page 3]]

            The whole test must be whether the act is, in fact, necessary for the immediate preservation of the public peace, health or safety or is necessary for the support of the state government.  If it is for the latter purpose the exemption from referendum applies even though it is notimmediately necessary.  In the case ofState ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28, our Supreme Court said:

            "Some contention has been made that the word 'immediate' qualifies the words 'support of the state government and its existing institutions.'  The word immediate qualifies the words 'public peace, health or safety' and no more.  * * * "

            An act is exempt from the referendum provision if it contributes to the financial support of the state government.  Our Supreme Court inState ex rel. Blakeslee v. Clausen, supra, said:

            "The intent and purpose of the people, as gathered from the words of the constitution and the circumstances attending the adoption of the seventh amendment, impels the holding that the people intended to use the word 'support' in its fullest sense.  When so considered, 'support' includes appropriations for current expenses, maintenance, upkeep, continuation of existing functions, as well as appropriations for such new buildings and conveniences as may be necessary to meet the needs and requirements of the state in relation to its existing institutions."

            Our Supreme Court has held that support of the state government is not confined to appropriation laws but also to laws to produce money for the state treasury.  State ex rel. Reiter v. Hinkle, 161 Wash. 652, 290 P. (2d) 1071.  And, in the case ofState ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162, our Supreme Court held that a law is for the support of the state government and for the preservation of the public peace, health and safety where it is designed to prevent the diversion of funds from the purpose for which they were raised.  The court there, in speaking of the clause "support of the state government and its existing public institutions" said:

             [[Orig. Op. Page 4]]

            "* * * While this last phase of the exception may include some revenue laws and some appropriation laws, that is not the line of cleavage.  The clear intention was to include within the exception any and all laws, and only such, as may be necessary for such support."

            The effect of the cases is that an act having for its bona fide purpose the financial support of the state government, whether it be through appropriations, the raising of money or the protection of funds in the treasury, is exempt from the referendum.  In a concurring opinion in the case of State ex rel. Pennock v. Reeves, 27 Wn. (2d) 739, 179 P. (2d) 961, Judge Hill declared:

            "It should be, by this time, a matter of public knowledge that budgets can be balanced by reducing expenditures or by increasing income, and that, in many cases, there is no alternative.  The wisdom of the method is not ours to review, but, if that was the purpose, we cannot say that it was not necessary for the support of the state government and its existing institutions, unless we are prepared to say that unbalanced budgets and deficit financing have nothing to do with the immediate support of the state government and its existing institutions."

            Thus, in our opinion a measure enacted by the 1951 legislature for the purpose of ameliorating financial difficulties through a revision of welfare legislation could be so drawn as to be exempt from referendum.

            In the case ofState ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P. (2d) 1, our Supreme Court held that an act providing for the relief of the indigent was for the purpose of immediately preserving the public peace, health and safety.  Thus, legislation modifying the welfare laws in such a manner as to insure the continued provision of adequate care for the needy will meet the test of being necessary for the immediate preservation of the public peace, health and safety.  In view of the fact that the state, during the current biennium, is unable to comply fully with the provisions of its welfare laws and has resorted to the prorating of public assistance grants and the total  [[Orig. Op. Page 5]] discontinuance of grants to some categories of assistance due to insufficiency of appropriated funds to carry the burden of the welfare program, and since the state will start the new biennium with a heavy burden of registered warrants, there can be no doubt that an emergency can be justified both from the standpoint of the support of the state government and the immediate necessity for preserving the public peace, health and safety.  Since the emergency is bona fide we have little doubt that a measure can be enacted by the legislature to revise present public assistance laws which will not be subject to referendum.

Very truly yours,

SMITH TROY
Attorney General

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