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AGO 1967 No. 33 - September 05, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


ELECTIONS - CONSTITUTIONAL AMENDMENTS - SUBMISSION TO VOTERS.

None of the constitutional amendments which were proposed by the 1967 legislature are to be submitted to the voters for their approval or rejection at the November 7, 1967, election; rather all of these measures are to be submitted to the voters at the November 5, 1968, state general election.

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

                                                               September 5, 1967

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

                                                                                                                 Cite as:  AGO 1967 No. 33

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Are any of the constitutional amendments which were proposed by the 1967 legislature to be submitted to the voters for their approval or rejection at the November 7, 1967, general election?

            For the reasons set forth below, we answer your question in the negative.

                                                                     ANALYSIS

            Article XXIII, § 1 of the Washington constitution provides 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 entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval,at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor: . . ."  (Emphasis supplied)

             [[Orig. Op. Page 2]]

            In the past, the "next general election," within the meaning of this constitutional provision, has uniformly been taken to mean the biennial state general election held in November of even-numbered years for the election of state officers.  The next election of this type will occur on November 5, 1968.  On the other hand, under present law (see RCW 29.13.020) the November 7, 1967, election to which you refer is simply a statewide election for cities, towns, school districts and other political subdivisions.  It is not a state general election.

            You are, of course, aware that in AGO 1967 No. 2, copy enclosed, we advised that the legislature, which was then in session, might constitutionally enact legislation designating the Tuesday after the first Monday of November of everyodd-numbered year as a general state election at which constitutional amendments and other state measures might be submitted to the qualified voters of the entire state for their approval or rejection.  The following language from this opinion is particularly relevant:

            ". . .It is our opinion that the only limitation upon the legislature, in so far as the submission of all state measures to the people is concerned, is that they be submitted at a general rather than at a special election; that is, an election which is (1) state wide [[statewide]]; (2) regularly recurs in each election or voting precinct of the state on a fixed date; (3)designated as a state general election by law; and (4) 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."  (Emphasis supplied)

            Thus, implicit in our opinion was the conclusion that before any general election, other than the state general election held in November of the even-numbered years, would qualify as a general election for submission of state measures, the legislature would first have to enact a law so providing.  Of course, the election would also have to meet the three other requirements enumerated in the opinion as set out above.

            Following the issuance of this opinion, three bills were introduced in the legislature, all of which were designed to designate the odd-numbered year municipal general election as a state general election for submission of state measures.  They were:  House Bill No. 654, introduced on February 9, 1967; House Bill No. 679, introduced on February 11, 1967; and Senate Bill No. 553, introduced on February 17, 1967.

             [[Orig. Op. Page 3]]

            However, none of these bills was enacted into law.  Therefore, the state of the law remains the same as before - i.e., the November 7, 1967, election is simply a statewide municipal election, and not a state general election which would qualify for the submission of proposed constitutional amendments under Article XXIII, § 1, supra.

            Accordingly, we conclude that, in the absence of a statute designating the November 7, 1967, election as a state general election, none of the proposed constitutional amendments passed by the 1967 legislature is to be submitted to the voters at the 1967 election.

            In reaching this conclusion we are aware of the preamble appearing in one of the proposed amendments -Senate Joint Resolution No. 23 -providing as follows:

            "THAT, At the general election to be held in this state on the Tuesday next succeeding the first Monday in November, 1967, there shall be submitted to the qualified voters of the state for their approval and ratification, or rejection, . . ."  (Emphasis supplied)

            However, as pointed out above, the general election at which state measures may be submitted to the voters must be an election which has been provided for by law as a state general election.  Clearly, a joint resolution of the legislature does not have the status or effect of law.

            The applicable legal principle has been stated as follows:

            ". . . The general rule, however, is that a joint or concurrent resolution adopted by the legislature, is not a statute, does not have the force or effect of law, and cannot be used for any purpose for which an exercise of legislative power is necessary.  This is true where the constitution under which the legislative body operates requires that no law shall be passed except by bill, or that the enactment of all laws be in some prescribed form other than by resolution."  (50 Am.Jur., Statutes, § 4, pp. 16, 17)

            The above quoted rule has been recognized by the Washington Supreme Court inState ex rel. Todd v. Yelle, 7 Wn.2d 443, 449, 110 P.2d 162 (1941), where the following language is found:

             [[Orig. Op. Page 4]]

            ". . . A law must be enacted either by popular initiative or by the legislature, and, when enacted by the legislature, must be by bill (Const., Art. II, § 18), and a bill cannot become a law until it is enacted by both houses (Art. II, § 22) and approved by the governor, or repassed over his veto (Art. III, § 12). . . ."

            Also, seeState ex rel. Robinson v. Fluent, 30 Wn.2d 194, 191 P.2d 241 (1948).1/   Compare,Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367 (1913), wherein the court disregarded a publication provision contained in a proposed constitutional amendment which was inconsistent with the publication requirements then contained in the constitution itself.

            Thus we conclude that the recital in Senate Joint Resolution No. 23 should not be accorded any effect, and that the measure should be submitted to the voters at the state general election in November of 1968, along with all of the other proposed constitutional amendments.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ARTHUR W. VERHAREN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Even if the language in S.J.R. No. 23 had the effect of law, it is questionable whether it would be sufficient to satisfy another of the requirements delineated in AGO 1967 No. 2, supra, and, for ease of reading, set out again as follows:

            "(2) regularly recurs in each election or voting precinct of the state on a fixed date:"

            Clearly, the recital in SJR No. 23 does not establish a regularly recurring event; rather, it speaks only of the 1967 general election.

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