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AGO 1966 No. 101 - August 03, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


STATE COLLEGES ‑- ESTABLISHMENT OF NEW FOUR-YEAR INSTITUTION OF HIGHER EDUCATION ‑- LOCATION ‑- POWER OF THE LEGISLATURE.

The legislature at its 1967 session may establish a new four-year institution of higher education at such place in this state which, in its judgment, will best serve the educational needs of the state.

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

                                                                  August 3, 1966

Honorable Gordon Sandison
State Senator, 24th District
312 First Avenue North
Seattle, Washington 98109

                                                                                                              Cite as:  AGO 65-66 No. 101

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office relative to the establishment of the next four-year institution of higher education in this state.  We paraphrase your specific question as follows:

            May the 1967 session of the legislature establish a new four-year institution of higher education at any place in this state which, in its judgment, will best serve the educational needs of the state?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            When passing upon a question regarding the power of the legislature it must be kept in mind that the legislature may enact any law not expressly or inferentially prohibited by the state or federal constitution.  Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960), and cases cited therein;State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958); In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955); andGruen v. State Tax Commission, 35 Wn.2d 1, 211 P.2d 651 (1949).  As the court stated inStandard Oil Co. v. Graves, 94 Wash. 291, 307, 162 Pac. 558 (1917):

            ". . . The state constitution is a limitation upon the actions and powers of the  [[Orig. Op. Page 2]] legislature, instead of a grant of power.  So far as the power of the legislature is not limited by the constitution, it is unrestrained. . . ."  (Emphasis supplied.)

            There is no provision in the constitution regarding the location of institutions of higher education.  Therefore, the legislature is free to establish such institutions in such numbers and at such places as, in its judgment, will best serve the educational needs of our state.  A state institution of higher education when created by statute is an agency of the state.  It has neither existence nor power away from its creator, the legislature.  See,State v. Hewitt Land Co., 74 Wash. 573, 134 Pac. 474 (1913).

            During its 1965 session the legislature created a temporary advisory council on public higher education.  Chapter 161, Laws of 1965, Ex. Sess.1/  The council was specifically directed by the legislature

            ". . . to study the problems and needs of public higher education in the state of Washington, and shall have the following functions, advisory to the governing boards of the institutions of public higher education, to appropriate state officials, and to the legislature:

            "(1) To review the functions, facilities, and programs of the institutions of public higher education so that there will be efficient use of resources and avoidance of unnecessary duplication;

            "(2) To submit to the governor and to the legislature, not less than sixty days prior to the 1967 regular session of the legislature, a report which describes problems and needs of public higher education and contains recommendations as to necessary or desirable changes, if any, in the functions and programs of the institutions of public higher education;

             [[Orig. Op. Page 3]]

            "(3) To develop plans for the orderly growth of public higher education andto make specific recommendations on the need for and location of new facilities and programs, including therein a recommendation as to a new institution of public higher education within the state.  If the finding by at least three‑fourths of the members of the council is that an institution of public higher education should be immediately initiated, the council is authorized by a vote of at least two-thirds of the members of the council, who are not legislators,to locate a specific site for a new four-year state college and so inform the governor before October, 1966."  (Emphasis supplied.) (Section 8.)

            On the basis of the study and recommendations of the council, the next legislature will be in a position of deciding whether a new institution of higher education should be established.  If the legislature believes such need exists, it may, by appropriate legislation, create the institution, provide for its location, and make such other provisions as are necessary for the operation thereof.2/

             We recognize some question has been raised as to whether the legislature by prior legislative enactment has directed where  [[Orig. Op. Page 4]] the next four-year institution should be located.3/   Assuming merely for the sake of argument, that such legislative directive does exist, the next legislature would not be bound thereby.

            The legislature in 1967, is free to repeal any earlier law on the subject either expressly or by implication.  State v. Becker, 39 Wn.2d 94, 97, 234 P.2d 897 (1951).  As the supreme court recently said in the case of City of Union Gap v. Carey, 64 Wn.2d 43, 49, 390 P.2d 674 (1964):

            "It is the exclusive prerogative of the legislature to amend [or repeal] its own statutes."

            Accordingly, it is our opinion that the legislature may at its 1967 session enact legislation creating a new four-year institution of higher education at such place in this state which, in its judgment, will best serve the educational needs of the state.

             [[Orig. Op. Page 5]]

            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/This act by its own terms will expire upon the convening of the 1967 legislature.

2/The only constitutional provision which must be complied with concerns the method for appointment of the governing body of the institution ‑ not its location.  Article XIII provides:

            "Educational, . . . and such other institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be provided by law.  The regents, trustees, or commissioners of all such institutions existing at the time of the adoption of this Constitution,and of such as shall thereafter be established by law, shall be appointed by the governor, by and with the advice and consent of the senate; and upon all nominations made by the governor, the question shall be taken by ayes and noes, and entered upon the journal."  (Emphasis supplied.)

3/Apparently the earlier legislative enactment in question is chapter 147, Laws of 1919.  This act which provided for the establishment of a normal school at Centralia, Washington, is not codified with the laws relating to our existing institutions of higher education.  See, chapters 28.76 through 28.81 RCW.  However, it does not appear to have been expressly repealed.  We assume it was omitted from the code on the assumption that it was no longer operative.

            From a review of the history of the act it appears that the only appropriation for operations which was enacted into law was a deficiency appropriation passed at the 1921 session.  Chapter 8, § 1, Laws of 1921.  Several attempts to expressly repeal the act failed.  See, H.B. 78, 1923 session; S.B. 16, 1925 session; H.B. 289, 1929 session; H.B. 21, 1931 session; S.B. 172, 1933 session and S.B. 239, 1935 session.  However, the legislature did by chapter 11, Laws of 1925 (Sub. S.B. 16) withdraw financial support.  Since that date no further legislation regarding the normal school has been enacted as far as we have been able to ascertain.

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