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AGO 1971 No. 23 - August 02, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF MOTOR VEHICLES ‑- ISSUANCE OF OCCUPATIONAL DRIVERS' PERMITS ‑- GOVERNOR'S VETO POWER

On and after the effective day of chapter 284, Laws of 1971, 1st Ex. Sess., portions of which were vetoed by the governor, occupational drivers' permits can continue to be issued in this state as provided for in RCW 46.20.390.

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

                                                                  August 2, 1971

Honorable Jack G. Nelson
Director, Department of Motor Vehicles
Highways-Licenses Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1971 No. 23

Dear Sir:

            This is written in response to your request for our opinion concerning the effect of the governor's veto of § 15 of the bill which became chapter 284, Laws of 1971, 1st Ex. Sess., on the issuance of occupational drivers' permits in this state.  We paraphrase your question as follows:

            In light of the governor's exercise of his veto power with respect to chapter 284, Laws of 1971, 1st Ex. Sess., can occupational drivers' permits continue to be issued after the effective date thereof as provided for in RCW 46.20.390?

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 46.20.390, codifying the provisions of § 46.20.390, chapter 12, Laws of 1961, as amended by § 32, chapter 32, Laws of 1967, reads as follows:

            "Any person who has had or may have his driver's license suspended or revoked  [[Orig. Op. Page 2]] because he has been convicted of or has forfeited bail for any first offense relating to motor vehicles, other than negligent homicide or manslaughter, and, if such person is engaged in an occupation or trade making it essential that he operate a motor vehicle, such person may file with any judge of a court of record, justice court, or municipal court having criminal jurisdiction in the county of such person's residence a verified petition, together with the receipt for the fee paid, setting forth in detail his need for operating a motor vehicle.  Thereupon, if the petitioner has not been convicted of or has not forfeited bail for any such offense within one year immediately preceding the present conviction or bail forfeiture, which offense in the opinion of the judge is not of such a nature as to preclude the granting of the petition, the judge may order the director to issue an occupational driver's license to such person.  A certified copy of the petition together with the order for the license shall be mailed to the director.  When the order is issued by such judge, a certified copy thereof shall be given to the petitioner which copy shall serve as a temporary occupational driver's license until the petitioner receives the license issued by the director.

            "An occupational driver's license shall permit the operation of a motor vehicle not to exceed twelve hours per day and then only when such operation is an essential part of the licensee's occupation or trade.  Such license shall be issued for a period of not more than one year.

            "The order for issuance of an occupational driver's license shall contain definite restrictions as to hours of the day, type of occupation, areas or routes of travel to be permitted under such license and such other conditions as the judge granting the same deems appropriate and that satisfactory proof of financial responsibility has been filed as provided in chapter 46.29 RCW.

             [[Orig. Op. Page 3]]

            "If such licensee is convicted for operating a motor vehicle in violation of his restrictions, or of a traffic violation which in the opinion of the director is such as would warrant suspension or revocation of such license, or if the judge does not, upon the facts, see fit to permit such person to retain his license, the director shall, upon receipt of notice thereof, revoke such license.  Such revocation shall be effective as of the date of such violation, conviction or withdrawal order, and it shall continue with the same force and effect as other revocations under this title."

            By its passage of Substitute House Bill No. 321, the first extraordinary session of the 1971 legislature proposed to repeal this statute and to replace it with a new section (designated as § 15 of the bill) reading as follows:

            "There is added to chapter 12, Laws of 1961 and to chapter 46.20 RCW a new section to read as follows:

            "(1) A person is eligible to petition for an occupational driver's license if he has been convicted of an offense relating to motor vehicles, other than negligent homicide or manslaughter, for which suspension or revocation of his driver's license is mandatory, including suspensions or revocations pursuant to RCW 46.20.308:  PROVIDED, That notwithstanding the provisions of RCW 46.20.270 as now or hereafter amended, if such person declares at the time of conviction his intent to so petition, the court may stay the effect of such mandatory suspension or revocation for a period not to exceed thirty days to allow the making of such petition.

            "(2) A petitioner for an occupational driver's license is eligible to receive such license only if:

            "(a) Within three years immediately preceding the present conviction he has not been convicted of any offense relating to motor  [[Orig. Op. Page 4]] vehicles for which suspension or revocation of a driver's license is mandatory or has not had his driver's license suspended or revoked pursuant to RCW 46.20.308; and

            "(b) He is engaged in an occupation or trade which makes it essential that he operate a motor vehicle; and

            "(c) He files satisfactory proof of financial responsibility pursuant to chapter 46.29 RCW.

            "(3) A petitioner for an occupational driver's license must file a verified petition on a form provided by the director, who shall issue such form upon receipt of the prescribed fee if petitioner is eligible under the requirements of subsections (1) and (2) (a) and (2) (c) above.  Petitioner must set forth in detail in such petition his need for operating a motor vehicle and may file such petition with any judge in a court of record, justice court or municipal court having criminal jurisdiction in the county of the petitioner's residence.

            "If such petitioner is qualified under the provisions of subsection (2) (b) above, and if the judge to whom petition was made believes such petition should be granted, such judge may order the director to issue an occupational driver's license to such petitioner: PROVIDED, That an occupational driver's license may be issued for a period of not more than one year, and shall permit the operation of a motor vehicle not to exceed twelve hours per day and then only when such operation is essential to the licensee's occupation or trade:  PROVIDED FURTHER, That such order shall be on a form provided by the director, and shall contain definite restrictions as to hours of the day, days of the week, type of occupation, and areas or routes of travel to be permitted under such license and such other conditions as the judge granting the same deems appropriate.

             [[Orig. Op. Page 5]]

            "A copy of the order and of the petition shall be sent to the director by the court.  The order shall be given to the petitioner and shall serve as his occupational license until the petitioner receives the license issued by the director:  PROVIDED, That the director shall not be required to issue such license if the petitioner's mandatory suspension or revocation is for sixty days or less.

            "(4) If the convicting judge granted a stay of effect as provided in subsection (1) above, then at the time the judge to whom petition was made issues the order he shall collect the petitioner's driver's license in the same manner as is specified in RCW 46.20.270 as now or hereafter amended, and at such time also the conviction shall take full effect.

            "(5) The director shall cancel an occupational driver's license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of an offense which pursuant to chapter 46.20 RCW would warrant suspension or revocation of a regular driver's license.  Such cancellation shall be effective as of the date of such conviction, and shall continue with the same force and effect as any suspension or revocation under this title."

            When the bill containing this proposal reached the governor for his approval or disapproval under Article III, § 12, of our state constitution, he vetoed this proposed new section in its entirety; however, he did not at the same time extend his veto to the next ensuing section of the bill, § 16, which contained the express repealer of RCW 46.20.390, supra.  In his veto message, the governor explained the reasons for his action with respect to § 15 as follows:

            "I am filing herewith to be transmitted to the House of Representatives at the next session of the legislature, without my approval as to one section, Engrossed  [[Orig. Op. Page 6]] Substitute House Bill No. 321 entitled:

                        'AN ACT Relating to motor vehicles.'

            "Section 15 of the bill permits a driver whose license has been suspended or revoked for offenses involving the use of a motor vehicle to be eligible to receive an occupational driver's license.  By its terms persons whose license has been suspended or revoked by the operation of Washington's Implied Consent law may again obtain the privilege of driving on the highways of our state.  RCW 46.20.308 was adopted by an overwhelming vote of the people only a short time ago.  I believe that this serious erosion of the people's determination is unwarranted and unwise.  I have therefore vetoed this section of the bill.

            "Except as to this section the remainder of the bill is approved."

            The issue raised by your request is whether, in view of the foregoing circumstances, the "repealed" provisions of RCW 46.20.390 ‑ i.e., the predecessor to proposed new § 15 of Substitute House Bill No. 321, supra, ‑ may be regarded as still in effect on and after August 9, 1971, when chapter 284, Laws of 1971, 1st Ex. Sess., goes into effect.  We answer this question in the affirmative.

            The situation arising by reason of the governor's partial veto of the subject bill is very similar to that which was involved in the early case ofSpokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316 (1910).  The factual pattern involved in that case was as follows:  During its regular 1909 session, the legislature had passed a new act relating to the enforcement of certain liens.  Thereafter, during its special session of the same year the legislature sought to change that statute by passing a different act containing a total of six sections.  The first four sections of this second act related to the enforcement of liens, the fifth section repealed the act which had been passed during the regular session, and the sixth section contained an emergency clause.  When this measure reached the governor's desk he vetoed the first four sections but did not veto the repealer of the regular session enactment which these  [[Orig. Op. Page 7]] sections were intended to replace.  Nevertheless, our state supreme court held that the regular session enactment hadnot been repealed and thus was still in effect, reasoning as follows:

            ". . . all affirmative legislation was wiped out by the veto, and the repealing clause was left standing alone.  The repealing clause was a mere incident to the affirmative legislation contained in the act, and when the latter fell under the veto the former fell with it.  In other words, when the executive approved the repealing section he approved something that his veto had already destroyed.  The legislature attempted to substitute one act for another and the executive had a right to place his veto on the substitution, but he could not defeat the one act by his veto, and the other by approving the repealing clause."

            Another somewhat more recent case which bears upon this question isState ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971 (1960).  Here, the 1959 legislature had enacted an amendatory statute increasing the salaries of the various state elective officials, including the governor.  When this bill reached then Governor Rosellini's desk, he "item" vetoed it by striking the provision raising his own salary, while allowing the remainder of the amendatory act to go into effect.  During the litigation which ensued, it was argued that by so doing, he had eliminatedany statutory salary provision for the office of governor.  However, the court rejected this proposition, and stated the applicable rule to be as follows:

            "Where an act or part of an act repeals or amends an existing act, the veto of the act or part thereof prevents the intended repeal or amendment from taking effect.  The original act or part of an act, which was the subject of the repeal or amendment, remains valid and in force for want of an effective  [[Orig. Op. Page 8]] repeal or amendment thereof.  Such a veto does not leave the kind of a void in the subject of the act for which the appellants contend.  Such a result could occur only where the act vetoed was an original act unrelated to any existing legislation.  Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316."

            Based upon these two decisions, it is our opinion that the provisions of RCW 46.20.390 have not been effectively repealed by the legislature.  Therefore, this statute will remain in effect even after the effective date of chapter 284, Laws of 1971, 1st Ex. Sess.; and thus, occupational drivers' permits can continue to be issued as provided for therein.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

RICHARD A. MATTSEN
Assistant Attorney General

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