INITIATIVE AND REFERENDUM ‑- LEGISLATURE ‑- REFERRAL OF BILL TO PEOPLE FOR APPROVAL OR REJECTION ‑- GENERAL STATE ELECTION ‑- GUBERNATORIAL VETO NOT APPLICABLE.
House Bill No. 714 if passed by both houses of the legislature with the provision for referral to the people for adoption or rejection at the November, 1966, biennial regular election (§ 10), need not be submitted to the governor for his approval or rejection since his veto power does not, under Article II, § 1, Amendment 7, Washington Constitution, extend to such referred measures.
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May 6, 1965
Honorable Gary Grant
State Representative, 47th District
Cite as: AGO 65-66 No. 18
We are writing in response to your recent letter requesting an opinion of this office on a certain question relative to House Bill No. 714, providing for congressional redistricting. You have particularly directed our attention to § 10 thereof, which provides:
"This act shall be submitted to the people for their adoption and ratification, or rejection, at the general election to be held in this state on the Tuesday next succeeding the first Monday in November, 1966 in accordance with the provisions of section 1, Article II of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof."
We paraphrase your question as follows:
If House Bill No. 714, is passed by both houses of the state legislature with § 10,supra, intact, must the bill be submitted to the governor for his approval or disapproval as a condition precedent to being voted upon by the people at the next biennial regular election?
Orig. Op. Page 2
We answer your question, as paraphrased, in the negative for the reasons set forth in our analysis.
As originally adopted in 1889, our state constitution established the traditional "checks and balances" relationship between the legislative and executive branches of government. Though the framers recognized that "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, . . ." (Article I, § 1), they did not initially provide for any form of direct legislation by the people. The legislative powers were vested in the senate and house of representatives, called the legislature of the state of Washington. See, Article II, § 1, (prior to the 7th Amendment).
The executive "check" upon the activities of the legislature‑- in the form of a veto power‑-was set forth in Article III, § 12, of the constitution reading (in pertinent part) as follows:
"Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law; . . . If any bill shall not be returned by the governor within five days, Sundays excepted, after it shall be presented to him, it shall become a law without his signature, unless the general adjournment shall prevent its return, in which case it shall become a law unless the governor, within ten days next after the adjournment, Sundays excepted, shall file such bill with his objections thereto, in the office of secretary of state, . . ."
Orig. Op. Page 3
However, in apparent response to popular sentiment of the times the 1911 legislature passed an act submitting to the people a proposed constitutional amendment (§ 1, page 136, Laws of 1911). It was this proposal which was adopted in 1912, as the 7th Amendment to the Washington state constitution. By this amendment the legislative authority was again vested in the legislature, but the people reserved to themselves the powers of initiative and referendum.
The power of initiative, i.e., to initiate legislation, was reserved to the people by subsection (a) of the 7th Amendment by which a procedure was established for the legal voters of the state to propose legislation by petition. We need not dwell upon the details of this procedure at the present time for it is the second power reserved by the people‑- that of referendum‑-with which we are here particularly concerned. By subsection (b) of the 7th Amendment the people provided as follows:
"(b) Referendum. 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, either by petition signed by the required percentage of the legal voters,or by the legislature as other bills are enacted. Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition." (Emphasis supplied.)
The point particularly to be noted from this constitutional provision is that a referendum (i.e., referral to the people for their approval or disapproval) may be ordered upon an act, bill or law (not within the expressly exempted classes of legislation) either by the people or by the legislature itself.
With regard to the conduct of elections on measures referred to the people, subsection (d) of the 7th Amendment provides:
". . . All elections on measures referred to the people of the state shall be had at Orig. Op. Page 4 the biennial regular elections, except when the legislature shall order a special election. . . ."
Finally, in so far as is pertinent in the instant discussion, the people, by subsection (d) of the 7th Amendment, took cognizance of the executive check upon the activities of the legislature contained in Article III, § 12, of the constitution as originally adopted, supra, and provided as follows:
". . . The veto power of the governor shall not extend to measures initiated by or referred to the people. . . ."
It is upon the basis of this constitutional language that we rest our conclusion herein; namely, that if House Bill No. 714, to which you have referred, is passed by both houses of the legislature with § 10 thereof,supra, intact it need not be submitted to the governor for his approval or disapproval as a condition precedent to being voted upon by the people at the next biennial regular election in November, 1966.
In thus concluding we recognize that the general abstract question presented has not yet been considered by the Washington supreme court. It has, however, been considered by the supreme court of the state of Missouri‑-a state having an identically worded constitutional exemption of initiative and referendum measures from operation of the gubernatorial veto. Missouri Constitution, Article III, § 52 (b).
The case to which we refer is Brown v. Morris, 290 S.W.2d 160, decided by the supreme court of Missouri on May 14, 1956. The Missouri legislature, in 1955, had enacted a bill providing for a cigarette tax. Section 11 of the bill provided for submission of the measure to the voters for approval or rejection pursuant to a constitutional provision comparable to our Amendment 7 (b),supra. The bill was not submitted to nor approved by the governor prior to its submission to the people.
Thereafter, at a special election held October 4, 1955, this cigarette tax measure was approved by the Missouri voters. Thereupon a taxpayers' suit was promptly initiated challenging the measure on various constitutional grounds including its failure to have been presented to and approved Orig. Op. Page 5 by the governor prior to being voted upon by the people. The Missouri supreme court, sittingen banc, unanimously rejected this contention, stating:
". . . The constitution, Art. III, expressly provides substitutes for the governor's approval, such as passage by the general assembly over the governor's veto, § 32, failure of the governor to return a bill presented to him § 33,or approval by the people on referendum, § 52 (b), and still the measure will 'become a law.' . . ." (Emphasis supplied.)
Commenting in detail on § 52 (b) further on in its opinion, the Missouri court carefully noted the precise issue with which it was confronted‑-namely, the necessity of approval by the governor of a legislatively initiated referendum measure prior to its submission to the people‑-and stated:
"Sec. 52 (b) of Art. III provides that 'The veto power of the governor shall not extend to measures referred to the people.' By § 49, Art. III, the people 'reserve power to approve or reject by referendum any act of the general assembly' with exceptions not here important. The veto power of the executive should not be construed to restrict the power of the general assembly or the people unless such intent clearly appears. Its nature and function is thus stated in 82 C.J.S., Statutes, § 52, p. 85: 'The authority of an executive to set aside an enactment of the legislative department is not an inherent power, and can be exercised only when sanctioned by a constitutional provision, and only in the manner and mode prescribed. The executive's veto power is a power conditionally to prevent legislation, but is not the power to enact new laws or to recall or modify old laws. The veto power is in derogation of the general plan of the state government, and provisions authorizing it must be strictly construed, so as to limit its exercise to the powers expressly enumerated or necessarily implied.'
Orig. Op. Page 6
"We construe the limitation on the governor's veto power as set out in § 52 (b) to be applicable before a referendum measure is submitted to the people as well as after the act has been approved by the voters." (Emphasis supplied.)
Another state having a similar constitutional provision relating to initiative and referendum, including an identical exemption of initiative and referendum measures from the veto power of the governor, is the state of Oregon. See, Oregon Constitution, Article IV, § 1. In the early case of Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710 (1903), the Oregon supreme court considered the impact of this constitutional exemption upon (a) bills passed by the legislature upon which referendum is ordered by petition of the people; and (b) bills passed by the legislature upon which referendum is ordered by the legislature itself. The court then stated:
"The veto power of the Governor is not abridged in any way, except as to such laws as the legislature may refer to the people. The provision of the amendment that 'the veto power of the Governor shall not extend to measures referred to the people' must necessarily be confined to the measures which the legislature may refer, and cannot apply to acts upon which the referendum may be invoked by petition. The Governor is required, under the constitution, to exercise his veto power, if at all, within five days after the act shall have been presented to him, unless the general adjournment of the legislature shall prevent its return within that time, in which case he shall exercise his right within five days after the adjournment. He must necessarily act, therefore, before the time expires within which a referendum by petition on any act of the legislature may be invoked and before it can be known whether it will be invoked or not. Unless, therefore, he has a right to veto any act submitted to him, except such as the legislature may specially refer to the people, one of the safeguards against hasty or ill-advised legislation which is everywhere Orig. Op. Page 7 regarded as essential is removed‑-a result manifestly not contemplated by the amendment." (Emphasis supplied.)
The later case ofState ex rel. Swan v. Kozer, 115 Ore. 638, 239 Pac. 805 (1925), is not pertinent to your present inquiry. That case involved the authority of the secretary of state to conduct a special election on legislatively initiated referendum measures where a separate bill providing for such special election has been presented to, and vetoed by, the governor. Thus, the case has no bearing upon the question which you have presented.1/
Repeated for ease of reference, and in order to emphasize this point, § 10 of House Bill No. 714,supra, provides:
"This act shall be submitted to the people for their adoption and ratification, or rejection,at the general election to be held in this state on the Tuesday next succeeding the first Monday in November, 1966 in accordance with the provisions of section 1, Article II of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof." (Emphasis supplied.)
Lastly, though we have had to resort to the decisions of courts of other jurisdictions for pertinentjudicial constructions (by analogy) of our constitutional qualification upon the Orig. Op. Page 8 gubernatorial veto power (Amendment 7 (d), supra), we need look no further than to the public archives of our own state to discover a most interesting contemporaneous executive construction of this constitutional provision. Research reveals that the very first session of our state legislature following adoption of the 7th Amendment,supra, meeting in 1913, enacted a bill to establish the teachers' retirement fund. The final section of this bill (§ 19, chapter 48, Laws of 1913), contained the following provision:
"This act shall not take effect, nor be in force until and unless the same shall be approved by the qualified electors of the state, at the next general election to be held on the first Tuesday after the first Monday of November, 1914, in accordance with that provision in section 1, of article 2, of the said constitution, as amended at the last general election, known as the referendum. . . ." (Emphasis supplied.)
Upon being passed by both houses of the legislature, this bill was presented to Governor Ernest Lister for his consideration. By letter dated March 11, 1913,2/ the governor transmitted the bill to the secretary of state with the following remarks:
"As is indicated by the title of this act it was passed by the Legislature for submission to the voters of the state for their approval before it becomes operative.
"I find that the constitutional amendment adopted at the general election on November 5th, 1912 provides:
"'The veto power of the Governor shall not extend to measures initiated or referred to the people.'
"This clearly indicates that the Governor Orig. Op. Page 9 of the state does not have the right to exercise the veto power on a measure of this kind. Therefore, in my opinion, I would not have the right of approval. Such approval could and would only indicate personal views on a measure.
"In my opinion a bill of this character ought to be handed directly to the Secretary of State by the Legislature without passing through the hands of the Governor."
For a discussion of the particular significance of such a contemporaneous construction of a constitutional provision by the framers or by public officials having responsibility to carry it into effect, see, Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), and cases cited therein. This is not to say that Governor Lister's construction of the crucial constitutional language is conclusive; however, his executive construction, coupled with the judicial construction given to identical language in the constitutions of our sister states of Oregon and Missouri (as discussed above) is to us most persuasive. Furthermore, exhaustive research has revealed no court decision of any state, nor administrative practice therein, to the contrary.3/
Orig. Op. Page 10
Moreover, it is most apparent that were the governor deemed to have the power to defeat, by veto, submission to the people at a regular biennial state election of a measure passed by the legislature upon which the referendum has been ordered by the legislature, the expressly stated constitutional exemption from the veto power of ". . . measures . . . referred to the people" would be rendered virtually meaningless. We have already seen that logic and reason militates against application of this constitutional language to referendum measures ordered by petition of the voters. Kadderly v. Portland, supra. The only other referendum procedure provided for by our constitution (as with Oregon)‑-to which the veto exemption must by process of elimination apply ‑-is the referendum procedure utilized in § 10 of House Bill No. 714, supra, which you have placed before us for consideration.
Accordingly, it is our opinion, and we so advise, that if House Bill No. 714 is passed by both houses of the legislature with § 10, supra, intact, it need not be submitted to the governor for his approval or disapproval as a condition precedent to being voted upon by the people at the next biennial regular election.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/As a matter of fact, a review of practice in the state of Oregon discloses that measures referred to the people by the legislature "at the next general election" have been traditionally filed with the secretary of state without being first submitted to the governor. See, e.g., chapter 711, Oregon Laws of 1961, by which the Oregon legislature established a mandatory period of daylight savings time, subject to approval or rejection by the people "at the next regular general election held throughout the state." According to advice received from the Oregon attorney general, "The holding of theKadderly case appears to have settled the problem herein Oregon. . . ."
2/Our attention was directed to this fact earlier in the regular session by Representative William C. Klein.
3/In a few cases, including instances in our own history, subsequent to the administration of Governor Lister, we have noted legislatively initiated referendum measures being presented to the governor before filing with the secretary of state. See, e.g., chapter 99, Laws of 1919; chapter 1, Laws of 1920, Ex. Sess.; chapter 87, Laws of 1923; chapter 164, Laws of 1935; chapter 83, Laws of 1939; and chapter 176, Laws of 1941. However, in none of these instances did the governor attempt to disapprove the measure in question or the legislature's order submitting it to the people, much less manifest any notion that he had the power to do so.