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AGO 1963 No. 33 - June 19, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CONSTITUTIONAL AMENDMENT ‑- PROPOSED ‑- RESOLUTION ‑- SUBMISSION BASED ON CONTINGENCY WHICH DOES NOT OCCUR.

House Joint Resolution No. 4, proposing amendments to the legislative apportionment provisions of the state constitution should not be submitted to the voters at the next general state election because the submission of the proposed amendment was specifically made contingent upon the passage of House Bill No. 56, which did not pass.

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

                                                                   June 19, 1963

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 33

Dear Sir:

            You have requested the opinion of this office on a question which we paraphrase as follows:

            Should House Joint Resolution No. 4, proposing an amendment to legislative apportionment provisions of the Washington constitution, be submitted to the voters at the next state general election, in view of the fact that the resolution is expressly conditioned on passage of a bill which was not passed?

            We answer your question in the negative.

                                                                     ANALYSIS

            House Joint Resolution No. 4, which passed the Senate March 30, 1963, and the House April 6, 1963, reads in pertinent part as follows:

            "BE IT RESOLVED, BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF WASHINGTON, IN LEGISLATIVE SESSION ASSEMBLED:

            "THAT, Subject to the condition expressed below, there shall be submitted to the qualified voters of the state at the next general election, for their approval and ratification, or rejection, an amendment to Article II, of  [[Orig. Op. Page 2]] the Constitution of the State of Washington, . . .

            ". . .

            "AND BE IT FURTHER RESOLVED, That, inasmuch as House Bill No. 56 of the 1963 first extraordinary session implements the constitutional amendment proposed in this joint resolution,this joint resolution is expressly conditioned upon the passage by both houses of the legislature of House Bill No. 56 of the 1963 first extraordinary session and that if such condition does not occur this joint resolution shall be null and void;

            "AND BE IT FURTHER RESOLVED, That all provisions embodied in this joint resolution are expressly declared to be nonseverable and that if any one provision, whether it be in the enabling text or in the amendatory text, is held invalid, this joint resolution shall be null and void;" (Emphasis supplied.)

            House Bill No. 56 of the 1963 first extraordinary session was not passed by both houses of the legislature.

            The amendment article of the Washington constitution, reads in pertinent part as follows:

            "Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be . . . submitted to the qualified electors of the state for their approval. . . ." Article XXIII, § 1 (Amendment 37) (Emphasis supplied.)

            We are presently concerned with the effect of agreement by the legislature to the constitutional amendment proposed in H.J.R. No. 4, when the agreement is conditional.

            While the functions of the legislature in legislating and in proposing constitutional amendments are conceptually different,1/  [[Orig. Op. Page 3]] we do not deem the difference material here.  We see no question of legislative deviation from the prescribed amendment procedure.  The question is whether the legislature has agreed to the proposed amendment.  We therefore rely on cases discussing legislative assent, although the cases may concern legislative acts rather than the power to propose constitutional amendments.

            Our court has held that the legislature may provide that acts shall become effective only on the occurrence of some contingent event.  State ex rel. Foster-Wyman Lum. Co. v. Sup'r Ct., 148 Wash. 1, 13, 14, 207 Pac. 770 (1928).  This is the uniform rule throughout the country.  See, 11 Am.Jur., Constitutional Law, § 216; 16 C.J.S. Constitutional Law, § 141.

            The Washington case most nearly in point is Johnson v. State, 187 Wash. 605, 60 P.2d 681 (1936).  There the court considered the effect of an unemployment compensation act which contained a section reading:

            "This act is to become operative in the State of Washington from and after the enactment date of the Wagner-Doughton bill which is now before the congress of the United States."  (Taken from quotation at 187 Wash. 607.)

            The Wagner-Doughton bill was not enacted, but a substitute bill (the social security act), embracing its basic principles, was enacted.  The court held that the unemployment compensation act never became operative because the substitute bill enacted by congress was different in important respects from the proposed Wagner-Doughton bill, and the Washington act was contingent upon the enactment of the Wagner-Doughton bill.

             [[Orig. Op. Page 4]]

            We have found one case concerning legislative assent to a resolution proposing a constitutional amendment.  State ex rel. Fatzer v. Shanahan, 173 Kan. 312, 246 P.2d 305 (1952), was a mandamus action to compel the secretary of state to publish a constitutional amendment allegedly proposed by the legislature.  In denying the application for the writ of mandamus, the court said:

            "[T]he parties concede that House Concurrent Resolution No. 6 as published in the statute book is not the resolution the Legislature passed.  The second conceded fact is that House Concurrent Resolution No. 6 throughout its legislative history contained the following provision:

            "'This resolution shall take effect and be in force from and after its publication in the statute book.'

            "It follows that whatever the Legislature actually passed has not been published in the statute book and is not yet effective.  There is, therefore, nothing which this court can submit to the electors on which to vote.

            "It rests solely in the legislative province to determine the method and time within which its enactments shall become operative.  With its pronouncements in those respects courts have no authority to interfere.  Their function is simply to ascertain the legislative will and to make it effective. . . ." (246 P.2d at 307.)

            In House Joint Resolution No. 4 our legislature has clearly stated that the joint resolution was conditioned on passage of House Bill No. 56.  That condition failed to occur.  The legislature expressly stated therein that upon such failure the joint resolution shall be null and void.

            We see no reason why the expressed intent of the legislature should not be given effect.  It is the opinion of this office that House Joint Resolution No. 4 is without force and effect and that the secretary of state should not certify the proposed constitutional amendment contained therein to the county auditors for submission to the voters.

             [[Orig. Op. Page 5]]

            In passing, we note that the same conclusion would result if the contingency provision were for any reason found to be invalid.  In that event the last quoted paragraph of the resolution would govern and the whole resolution would be null and void.  That paragraph expressly declares the provisions of the resolution to be inseverable.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYTLER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Concerning legislative power of the legislature, the rule is that the state constitution is not a grant, but a restriction on the lawmaking power, and the power of the legislature to enact laws is unrestrained except where it is expressly or inferentially prohibited by the state or federal constitution.  Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (160); State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958).  However, the power to initiate changes in the constitution is not considered a legislative power, but rather a special power delegated to the legislature by the constitution, and as such, the extent of the power is strictly construed.  11 Am.Jur., constitutional Law, § 28; 16 C.J.S., Constitutional Law, § 9.

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