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AGO 1965 No. 12 - March 05, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington

LEGISLATURE ‑- SPECIAL SESSION ‑- ENACTMENT OF LAWS ‑- VALIDITY ‑- CONSTITUTIONAL REQUIREMENTS ‑- PASSAGE OF BILL BY BOTH HOUSES DURING SESSION.

A special session of the legislature when convened by the governor is a new session and not a continuation of the regular session; therefore,at the special session bills to be constitutionally enacted must be introduced, (Article II, § 20; AGO 65-66 No. 10) passed separately by both houses, (Article II, § 22) be signed by the presiding officers, (Article II, § 32) and be presented to the governor (Article III, § 12).

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                                                                   March 5, 1965

Honorable Robert C. Bailey
Majority Caucus Chairman
State Senate
Legislative Building
Olympia, Washington

Honorable Marshall A. Neill
Minority Caucus Chairman
State Senate
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 12

Gentlemen:

            By letter dated March 1, 1965, you have requested an opinion of this office on a question which we paraphrase as follows:

            Would any constitutional problem arise regarding the validity of any act where a bill passed the house of origin in the regular session and the opposite house during the special session, providing, of course, that both houses agree to procedure either in joint rules or by joint resolutions?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The state Constitution is a limitation on the actions of the legislature.  AGO 65-66 No. 10 [[to Robert Schaefer, Speaker of House of Representatives on March 3, 1965]]and cases cited therein.  The legislature.  AGO 65-66 No. 10 and cases cited therein.  The Thirty-ninth regular session of the legislature, under the  [[Orig. Op. Page 2]] Constitution, will end midnight on March 11, 1965.1/   When theregular session adjourns sine die on that date the lawmaking power ofthat particular session will cease.  See, State ex rel. Robinson v. Fluent, 30 Wn. (2d) 194, 191 P. (2d) 241 (1948).  InState ex rel. Jones v. Atterbury, 300 S.W.2d 806, 811, (1957), the court said:

            "The term 'sine die' means 'without day,' and a legislative body adjourns sine die when it adjourns 'without appointing a day on which to appear or assemble again; finally, as Congress adjourned sine die.'  Webster's New International Dictionary, 2d Ed., Unabridged; Black's Law Dictionary, 4th Ed.  The Missouri General Assembly is distinguishable, however, from a body such as a constitutional convention which is selected for a specific purpose.  When the latter completes its work and adjourns sine die it is functus officio in that it 'has fulfilled the purpose of its creation, and is therefore of no further virtue or effect.  The term is applied to something which one has had life and power, but which has become of no virtue whatsoever, * * *.'  37 C.J.S., Functional‑-Fund, p. 1401. . . .

            "However, the constitution does not vest the  [[Orig. Op. Page 3]] legislative power in the General Assembly for a limited time or purpose.  Art. III, § 1.  The members of the General Assembly are public officers and as such they hold their offices for the term thereof and until their successors are duly elected and qualified.  Art. VII, § 12, and art. III, § 14.  They remain members of the General Assembly when not in legislative session.  This is further evidenced by the fact that they are paid monthly and not by the session or for the time they are in session.  Art. III, § 16.  It is more proper to say that the General Assembly always exists as the depositary of the legislative power of state government, but that its right to function in a legislative way is limited to the time when it is in regular or special session.  It is bound to reconvene, if not in special, then at the next regular session, the time of which is fixed by the Constitution.  Art. III, § 20, art. IV, § 9.

            "The legislative powers of the State of Missouri are vested in the Senate and House of Representatives jointly and whatever continuity they may have as the depositary of the legislative powers is jointly shared and cannot be independently exercised. . . ."  (Emphasis supplied.)

            The exclusive power to convene a special session of the legislature is vested in the governor.  Article III, § 7;State v. Fair, 35 Wash. 127, 76 Pac. 731 (1904); AGO 53-55 No. 5 [[to Earl Coe, Secretary of State on April 13, 1953]].  A special session is anew session.  It is not and cannot be considered a continuation of the regular session notwithstanding the fact that it may be convened shortly thereafter.  See,State ex rel. Robinson v. Fluent, supra.  InPeople v. Rice, 135 N.Y. 473, 31 N.E. 921 (1892), the court said:

            ". . . The point is made that an extraordinary session is not such a session of the legislature as is contemplated by the Constitution.  To my mind the objection is wholly without force.  An extraordinary  [[Orig. Op. Page 4]] session is, nevertheless, a session of the legislature.  The governor by the terms of the Constitution has 'power to convene the legislature . . . on extraordinary occasions.'  When thus convened, is not the legislature in session?  And can it be for a moment correctly contended that a session thus convened is the same session which had already terminated by an adjournment without day?  It is not a regular session, it is true; it is what the Constitution describes it,‑-an extraordinary session,‑-but yet a session of the legislature.  The Constitution does not say that the session which is to deal with the question must be a regular one.  All it directs is that the legislature at the first session after the return shall proceed to make the alterations.  The Constitution provides for the assembling of the legislature on the first Tuesday in January in each year.  When it adjourns sine die, has not the session of the legislature ended?  The term of office of its members may not have ended, but the legislative session has certainly terminated by an adjournment without day.  It could not again assemble and perform any valid act unless the governor, under the special power given him by the Constitution, should convene it.  When thus convened, the legislature is in session, and it is clearly not the same session which was ended by a prior adjournment thereof without day. . . ."  (Emphasis supplied.)

            A special session of our legislature, if convened by the governor, is not limited by the Constitution in the legislative business it may consider.  State v. Fair, supra; AGO 65-66 No. 10.  It mayenact any laws during the special session which it is otherwise empowered to enact at any regular session.  InMorford v. Unger, 8 Iowa 82, 87 (1859), cited by our court in State v. Fair, supra, the supreme court of Iowa said:

            "Whenlawfully convened, whether in virtue of the provision of the Constitution, or the Governor's proclamation, it is the 'General  [[Orig. Op. Page 5]] Assembly' of the state, in which the full and exclusive legislative authority of the state is vested.  Where its business at such session, is not restricted by some constitutional provision, the general assembly may enact any law at a special or extra session, that it might at a regular session.  Its powers not being derived from the Governor's proclamation, are not confined to the special purpose for which it may have been convened by him."  (Emphasis supplied.)

            The limitations imposed upon the legislature in the enactment of laws are for the most part set forth in Article II, of our Constitution.2/   These provisions are mandatory (Article I, § 29) and must be followed by the legislature at any session whether it be a regular or special session.3/   Thus, if a special session  [[Orig. Op. Page 6]] is convened as is presently contemplated, avalid enactment will depend upon compliance with the following:

            Article II, § 18:

            "The style of the laws of the state shall be: 'Be it enacted by the Legislature of the State of Washington.'  And no laws shall be enacted except by bill."

            Article II, § 19:

            "No bill shall embrace more than one subject, and that shall be expressed in the title."

            Article II, § 20:

            "Any bill may originate in either house of the legislature, and a bill passed by one house may be amended in the other."

            Article II, § 22:

            "No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor."

            Article II, § 32:

            "No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session, and under such rules as the legislature shall prescribe."

            Article III, § 12, requires in part as follows:

            "Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. . . ."

            It follows that if a bill is not introduced in one house of the legislature; passed by both houses; signed by the presiding  [[Orig. Op. Page 7]] officers and presented to the governor at thesame legislative session (whether it be a regular or special session) the act is subject to a constitutional challenge.  Accordingly, in our opinion, a bill passed by one house during the regular session and the other house during the special session would not be constitutionally enacted.

            In AGO 65-66 No. 10 we were conscious of the constitutional problem discussed herein and for that reason our views were carefully expressed to approve a procedure at the special session which avoids any conflict with the constitutional provisions set forth above.  We concluded therein:

            "While the constitution provides that bills may originate in either house of the legislature, the manner or method governing the introduction of bills, memorials or resolutions and the procedure to be followed prior to final passage or adoption thereof are subject to the express constitutional rule‑making power of each house.  Therefore, since there is no limitation or restriction in the Constitution, the house and/or senate may in the exercise of its discretion adopt a resolution at a special session providing that all bills, memorials and resolutions introduced but not enacted or adopted during the regular session shall be reintroduced at the special session in the house wherein they originated; to retain the same number; to be placed in the same committee; or to otherwise hold their same position in the special session as was held during the regular session prior to final passage in that house.  [The house of origin]"  (Emphasis supplied.)4

             [[Orig. Op. Page 8]]

            In the foregoing opinion we further advised that bills passed following the procedure outlined therein would be immunized from constitutional assault by the "enrolled bill doctrine."  Here, on the contrary, the court would not have to go behind the enrolled bill to establish the unconstitutionality of any act passed as suggested by your question.  The enrolled bill itself would disclose the unconstitutional manner of enactment, because it would show on its face, among other things, the dates on which it passed the house and the senate.  Thus, if a bill were passed in one house during the regular session and the other house during the special session, the bill, to use the descriptive language of Judge Mackintosh (State ex rel. Dunbar v. State Board, 140 Wash. 433, 249 Pac. 996 (1926)), would carry "its death warrant in its hand."

            We have not overlooked the possible argument, as suggested by your question, that a rule or resolution of the house and senate adopted at the special session might provide not only for reintroduction but passage of all bills previously passed in the house of origin.5/   Such legislative action in respect to blanket repassage of bills would be totally ineffective.  Article II, § 18 (the style of bills), and Article II, § 22 (each bill must be passed by majority of members of each house by "yea" and "nay" vote).6/   In addition, if it be assumed for the sake of argument that the foregoing requirements could be satisfied by labeling the rule or resolution a "bill," the so-called bill would violate Article II, § 19‑-"No bill shall embrace more than one subject, and that shall be expressed in the title."  State ex rel. Washington Toll v. Yelle, 54 Wn.2d 545, 342 P.2d 588 (1959) and cases cited therein.

            In summary, we conclude that a special session of the legislature when convened by the governor is a new session and not  [[Orig. Op. Page 9]] a continuation of the regular session; therefore,at the special session bills to be constitutionally enacted must be introduced, (Article II, § 20; AGO 65-66 No. 10) passed separately by both houses, (Article II, § 2) be signed by the presiding officers, (Article II, § 32) and be presented to the governor (Article III, § 12).

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Chief Assistant
Attorney General

                                                         ***   FOOTNOTES   ***

1/Article II, § 12, reads as follows:

            "The first legislature shall meet on the first Wednesday after the first Monday in November, A.D. 1889.  The second legislature shall meet on the first Wednesday after the first Monday in January, A.D. 1891, and sessions of the legislature shall be held biennially thereafter, unless specially convened by the governor, but the times of meeting of subsequent sessions may be changed by the legislature.  After the first legislature the sessions shall not be more than sixty days."

2/See, Article XXIII, § 1, Amendment 37, for the procedure prescribed for constitutional amendments.

3/In Cooley's Constitutional Limitations, 7th Ed., page 186, we find the following pertinent statement:

            ". . . when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the last importance.  For in such case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential. . . ."  (Emphasis supplied.)

4/Thus, under this opinion a bill which may have passed the house during the regular session but not the senate will have to be reintroduced and passed in the house during the special session prior to final senate action thereon.

5/Such procedure has never been followed by any legislature as far as we have been able to ascertain, and more importantly has never been approved by any court.

6/In AGO 65-66 No. 10, Appendix A, we pointed out these constitutional provisions cannot be changed or modified by any rule of the legislature.

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