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AGO 1973 No. 13 - May 30, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- INITIATIVE AND REFERENDUM ‑- MEANING OF GENERAL ELECTION ‑- AUTHORITY OF LEGISLATURE

In the event that a sufficient number of petition signatures are obtained by June 6, 1973, to qualify Referendum Measure No. 36 for submission to the voters, this measure will be voted upon at the November 6, 1973, state general election provided for in chapter 4, Laws of 1973.

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

                                                                   May 30, 1973

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1973 No. 13

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            In the event that a sufficient number of petition signatures are obtained by June 6, 1973, to qualify Referendum Measure No. 36 for submission to the voters, at what election will this referendum measure be voted upon?

            It is our opinion, for the reasons set forth in our analysis, that if this referendum measure qualifies for submission to the voters through the filing of petitions containing a sufficient number of voters' signatures by June 6, 1973, it should be placed upon the November 6, 1973, election ballot.

                                                                     ANALYSIS

            Under the provisions of Article II, § 1 (Amendment 7) of our state Constitution relating to the initiative and referendum, a referendum election may be had upon any act passed by the legislature ". . . except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of state government and its existing public institutions, . . ."  Such an election may be ordered  [[Orig. Op. Page 2]] either by petition signed by a designated percentage of the legal voters of our state or by the legislature itself, as other bills are enacted.  In the case of a referendum election ordered by the petition method, the requisite number of signatures to qualify the measure for the ballot is now covered by Article II, § 1A (Amendment 30), adopted in 1956, which provides, in material part, that:

            ". . .  Hereafter, the number of valid signatures of legal voters required upon a petition for a referendum of an act of the legislature or any part thereof, shall be equal to four percentum of the number of voters registered and voting for the office of governor at the last preceding regular gubernatorial election. . . ."

            The deadline for filing petitions containing this required number of voters' signatures is provided for in subsection (d) of Article II, § 1 (Amendment 7),supra, as follows:

            ". . .  Referendum petitions against measures passed by the legislature shall be filed with the secretary of state not later than ninety days after the final adjournment of the session of the legislature which passed the measure on which the referendum is demanded. . . ."1/

             If this deadline is met, the operation of the act against which the referendum petitions were filed is then suspended until thirty days after the election at which it is approved ‑ if this be the verdict of the voters.  Wynand v. Dept. of Labor & Ind., 21 Wn.2d 805, 153 P.2d 302 (1944).  Your question involves the time for holding this election in the case of a referendum by petition against an act passed by the 1973 legislature during its regular session which ended on March 8, 1973; specifically, chapter 100, Laws of 1973, an amendatory act reducing the minimum age for the purchase or consumption of alcoholic beverages from 21 to 19 years.

            In accordance with RCW 29.79.030, which requires referendum measures such as this to be assigned identifying numbers in a series separate from those assigned to referendum bills  [[Orig. Op. Page 3]] ordered by the legislature itself, you have designated this referendum ‑ filed with you on April 12, 1973 ‑ as Referendum Measure No. 36.  Because the act against which it is aimed was enacted during the regular session, the deadline for filing the required signature petitions will be June 6, 1973 (ninety days after final adjournment of the session); and your request asks us to assume that petitions bearing a sufficient number of voters' signatures to qualify this measure for the ballot will have been filed by the proponents of the referendum by that date.  In that event you ask at what election will this measure be voted upon?

            Our starting point for resolving this issue is to be found in chapter 4, Laws of 1973, a recently enacted amendatory law commonly referred to as the "annual elections bill."  By § 1 of this new law, which contained an emergency clause and thus took effect when signed by the governor on January 25, 1973, the preexisting provisions of RCW 29.13.010 were amended to read as follows:

            "All state, county, city, town, and district general elections for the election of federal, state, legislative, judicial, county, city, town, district, and precinct officers, and for the submission to the voters of the state of any measure for their adoption and approval or rejection, shall be held on the first Tuesday after the first Monday of November, in the year in which they may be called.  A state‑wide general election shall be held on the first Tuesday after the first Monday of November of each year:  PROVIDED, That the state‑wide general election held in odd-numbered years shall be limited to (1) city, town, and district general elections as provided for in RCW 29.13.020, or as otherwise provided by law; (2) the election of state and county officers for the remainder of any unexpired terms as provided for in Article II, section 15, Article III, section 10, and Article IV, sections 3 and 5 of the state Constitution; (3) the election of county officers in any county governed by a charter containing provisions calling for general county  [[Orig. Op. Page 4]] elections at this time; and (4) the approval or rejection of state measures, including proposed constitutional amendments, matters pertaining to any proposed constitutional convention, initiative measures and referendum measurers proposed by the electorate, referendum bills, and any other matter provided by the legislature for submission to electorate:  PROVIDEDFURTHER, That this section shall not be construed as fixing the time for holding primary elections, or elections for the recall of county, city, town, or district officers; nor special elections to fill vacancies ((in any state office, or)) in the membership of either branch of the congress of the United States:  PROVIDED ((FURTHER)) HOWEVER, That the board of county commissioners may, if they deem an emergency to exist, call a special county election at any time by presenting a resolution to the county auditor at least forty-five days prior to the proposed election date.  Such county special election shall be noticed and conducted in the manner provided by law."  (New language underscored.)

            The essential issue raised by your request is whether a "referendum measure proposed by the electorate" can, constitutionally, be submitted to the voters at a "state‑wide [[statewide]]general election held in odd-numbered years" under the provisions of this 1973 amendatory act ‑ the first of which will, according to the calendar, occur on November 6, 1973 ‑ in view of certain additional language appearing in subsection (d) of Amendment 7, supra.  After prescribing the time period for the filing of referendum petitions as above note, this subsection of the Constitution goes on to state that:

            ". . .  All elections on measures referred to the people of the state shall be had at the biennial regular elections, except when the legislature shall order a special election. . . ."  (Emphasis supplied.)

            But for the 1973 legislature's enactment of chapter 4, supra (or some other act calling for an earlier special election on such measures), there would be no question but that  [[Orig. Op. Page 5]] Referendum Measure No. 36 or any comparable referendum against an act of the 1973 legislature would not be voted upon under this constitutional provision until the biennial state general election scheduled to be held on November 5,1974.  Accord, AGO 1967 No. 2 [[to James M. Dolliver, Administrative Assistant to the Governor on January 18, 1967]], copy enclosed, at p. 3, citing Wash. Const., Article II, § 5, which provides for biennial elections ". . . on the first Tuesday after the first Monday in November, eighteen hundred and ninety . . ." and everyeven-numbered year thereafter, for the election of members of the house of representatives.  However, as was further indicated in this 1967 opinion, it is constitutionally permissible for the legislature to establish a further general election during the same month in everyodd-numbered year at which

            ". . .  (1) constitutional amendments, initiatives, referendums and state bond issues (Article VIII, § 3)ready for submission, will be submitted to the qualified voters of the entire state for their approval or rejection; (2) school directors will be elected by the qualified voters throughout the entire state; and (3) city and other public officers specified in RCW 29.13.020 will be elected by the qualified voters entitled to vote on such offices."  (Emphasis supplied.)

            Although several earlier attempts were made to enact a bill so providing during the sessions following the issuance of this opinion, none of these was successful until the recent, 1973, regular session ‑ at which chapter 4,supra, was enacted.  And, although this bill has generally been spoken of as an "annual elections bill," we think it will readily be seen upon closer analysis that what it really contemplates and provides for are two separate sets of recurring "biennial regular elections."  The first of these is to be held, as before, in November of every even-numbered year for the election or reelection of persons to those state offices which are up for election at that time and for the consideration of qualified ballot measures; and the other is now and henceforth to be held at the same time in every odd-numbered year for the election of state officers to fill any unexpired terms which may be required by law to be filled at ". . . the next general election . . ." and, in addition, for the consideration of any of these same state ballot measures as may be ready for submission to the voters at that time.

             [[Orig. Op. Page 6]]

            Both of these sets of biennial regular elections clearly meet the test of ageneral election as that term was defined in AGO 1967 No. 2, supra; i.e., an election which (1) is statewide; (2) regularly recurs in each election or voting precinct of the state on a fixed date; (3) is designated as a state general election day by law; and (4) is for the election of officers and/or for the ratification or rejection of measures submitted to the electors of the whole state after publication thereof required by the Constitution.  Thus both of them will qualify as the kind of an election at which constitutional amendments, initiatives, and referendums ‑ both as submitted under Article VIII, § 3 of the state Constitution (state general obligation bond authorizations) and under Amendment 7,supra ‑ may constitutionally be voted upon.  Accord, the tabulation appearing in AGO 1967 No. 2 at p. 3, where we listed and quoted the applicable language from each of the several constitutional provisions under which such measure may be submitted to the voters as follows:

            "TYPE OF MEASURE                                    TIME FOR SUBMISSION

"I.         CONSTITUTIONAL AMENDMENTS          'Next general election.'  Art. XXIII, § 1.  (Original Const. 1889.)

"II.       INITIATIVE

"A.       To people                                                         No specification, unless an initiative is a measure 'referred to the people.'  For purposes of Art. II, § 1 (d), 7th Amendment (adopted 1912), 4th sentence, (III-A below).

                                                                                     By statute, initiative measures and petitions are filed at stated times before the 'next general state‑wide election.' RCW 29.79.020, P 1, 29.79.140 (2).

             [[Orig. Op. Page 7]]

"B.       To Legislature

            1. If legislature approves

            and refers to people.                 'Next regular election.' Art. II, § 1 (a).  Amendment 7 (adopted 1912).

            2. If legislature rejects

            or does not act on

            initiative.                                               'Next ensuing regulargeneral election.'  Art. II, § 1 (a), Amendment 7, (adopted 1912), cf.  RCW 29.79.270.

            3. If legislature rejects

            initiative and

            proposes alternative.                 'Next ensuing regulargeneral election.'  Art. II, § 1 (a), 7th Amendment (adopted 1912).

"III. REFERENDUMS

"A.       Bills                                                      'Biennial regular elections, except when the legislature shall order a special election.' Art. II, § 1 (b), 7th Amendment (adopted 1912) cf. RCW 29.79.250.

"B.       Measures                                                         Same

"C.       Laws authorizing indebtedness.

                                                                                    'A general election.' Art. VIII, § 3.  (Original Const. 1889.)

            The reason why general elections were selected as the time for submission of such important state measures is expressed in State ex rel. Wiesenthal v. Denny, 4 Wash. 135, 146, 147, 29 Pac. 991 (1892).  While the court in that case was discussing submission of charter amendments under Article XI, § 10, at "a general election," the reasoning thereof is equally applicable here.  Judge Theodore Stiles (who had been a delegate to our constitutional convention of 1889), speaking for the court said:

             [[Orig. Op. Page 8]]

            ". . .  The constitution requires and contemplates but little of pomps or forms‑- a recommendation by the legislative authority, a publication so that all may have knowledge of the proposition, and a vote is all.  General elections were selected as the time for submission, because there ought to be a certain stability about such instruments, and the vice of non-attention to special elections is well known. . . ."  (Emphasis supplied.)

            Of course it is also true that referred measures under the 7th Amendment,supra,unlike any of the other state‑wide ballot propositions listed in § 1 of chapter 4, supra, can be voted upon at a special election as well, if so ordered by the legislature.  And for this reason, it could alternatively be argued that even if the odd-year election provided for by chapter 4, supra, does not qualify as a "biennial regular election" for the submission of referendum measures, it constitutes as to these measures a special election ordered by the legislature in any event ‑ to be conducted on the Tuesday after the first Monday in November of each odd-numbered year in which a referendum measure (such as Referendum Measure No. 36, in the instant case) has qualified for placement on the ballot at a time sufficiently far in advance of this date to permit all of the procedural requirements of the statutes applicable to the submission of such measures to be met.

            We do not, however, find it necessary to rest our answer to your question upon this alternative line of reasoning ‑ although it certainly would also be utilized by us in court should any challenge be made to the submission (in the event that it qualifies) of Referendum Measure No. 36 to the voters at the November 6, 1973, election first provided for under that 1973 amendatory act.  Instead, we rest our case for the submission of this measure at that election (rather than holding it over until November the following year) on the premise that it is just as much a "biennial regular election" under subsection (d) of Amendment 7, supra, as is that which is to be held a year later, on November 5, 1974.

            Over and above what we have said thus far in support of this conclusion we think it significant to note another point.  Although the applicable constitutional amendment,  [[Orig. Op. Page 9]] as proposed by the 1911 legislature2/ and adopted by the people at the 1912 general election, speaks of referendum measures being voted upon "at the biennial regular elections," the language of the 1913 act which was passed in implementation of that amendment reads somewhat differently.  By § 7, chapter 138, Laws of 1913, the legislature, in prescribing the form for the petitions to be used to order a referendum on a bill passed by the legislature, expressed itself as follows:

            "Petitions ordering that bills or parts of bills passed by the legislature be referred to the peopleat the next ensuing general election, or special election ordered by the legislature, to be filed with the secretary of state within ninety days after the final adjournment of the session of the legislature at which such bill was passed, shall be substantially in the following form:

            ". . ."  (Emphasis supplied.)

            This section, in turn, was reenacted as § 29.79.020, chapter 9, Laws of 1965 (now RCW 29.79.020), so as to read, in material part, as follows:

            "A petition ordering that any act or part thereof passed by the legislature be referred to the people must be filed with the secretary of state within ninety days after the final adjournment of the legislative session at which the act was passed.  It may be submittedat the next general state‑wide election or at a special election ordered by the legislature."  (Emphasis supplied.)

            However, as a part of this reenactment the 1965 legislature stated, in § 29.98.010, chapter 9, Laws of 1965, that:

            "The provisions of this title insofar as  [[Orig. Op. Page 10]] they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments."

            Thus it appears that both the contemporaneous 1913 legislature and the more recent 1965 session looked upon "the biennial regular elections" referred to in Amendment 7 as denoting, in fact, that biennial regular election which will constitute "the next ensuing general election" (in the words of the 1913 legislature) or "the next general state‑wide election" (as it was described in the 1965 reenactment).

            In 16 Am.Jur.2d, Constitutional Law, we find, first, in § 83 the following general statement as to the significance of a contemporaneous construction of a constitutional provision:

            "In questions of constitutional construction and in the determination of the constitutionality of statutes, great weight has always been attached to contemporaneous exposition of the meaning of fundamental law, not only where such interpretation is that of the courts, but also where it is that of other departments of government.  The presumption is that those who were the contemporaries of the makers of the constitution have claims to the deference of later tribunals, because they had the best opportunities of informing themselves of the understanding of the framers and of the sense put upon the constitution by the people when it was adopted."

            And then, in § 85, we find it stated that:

            "The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing  [[Orig. Op. Page 11]] with legislative powers and procedure.  Though not conclusive, such interpretation is generally conceded as being entitled to great weight.  It has been generally stated that contemporaneous construction of a constitutional provision by the legislature, continued and followed, is a safe guide as to its proper interpretation, and should not be departed from unless manifestly erroneous.  There is a strong presumption that such contemporaneous construction rightly interprets the meaning and intention of a constitutional provision.  While neither length of time nor legislative action, though oft repeated, will sanction a violation of the organic law, resort may be had to such sources to discover the meaning of a provision of doubtful import."

            Accord, from our own state supreme court, the following statement of the rule as set forth inYelle v. Bishop, 55 Wn.2d 286, 291, 347 P.2d 1081 (1959):

            "In determining the meaning of a constitutional provision, the intent of the framers, and the history of events and proceedings contemporaneous with its adoption may properly be considered.  Bowen v. Department of Social Security, 14 Wn.2d 148, 127 P.2d 682 (1942);Sears v. Western Thrift Stores, 10 Wn. (2d) 372, 116 P.2d 756 (1941);State ex rel. Mason County Logging Co. v. Wiley, 177 Wash. 65, 31 P.2d 539 (1934);Morgan v. Board of School Com'rs of Mobile County, 248 Ala. 22, 26 So.2d 108 (1946);State ex rel. State R. Comm. v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949)."

            See, also,State ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162 (1941), andState ex rel. Christensen v. Hinkle, 169 Wash. 1, 13 P.2d 42 (1932), in which such significance was attached, specifically, tolegislative constructions of the Constitution.

             [[Orig. Op. Page 12]]

            For all of the foregoing reasons, then, it is our opinion that if Referendum Measure No. 36 qualifies for submission to the voters through the filing of petitions containing a sufficient number of voters' signatures by June 6, 1973, it should be placed upon the November 6, 1973, election ballot.

            We trust the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Accord, AGO 1973 No. 8 [[to Arthur C. Brown, State Representative on March 6, 1973]].

2/Chapter 42, Laws of 1911, submitted to the voters at the November, 1912, general election in accordance with Article XXIII, § 1, supra.

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