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AGO 1959 No. 18 - February 27, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

INITIATIVE AND REFERENDUM - CONSTITUTIONALITY OF INITIATIVE 25 COWLITZ DAM

A majority of the attorneys in this office who have reviewed and considered this matter are of the opinion that the initiative, if enacted, would be invalid in its application to all persons, as that term is defined therein, except municipal corporations of this state.  Since the single expressed purpose of the initiative is to conserve the state's fishery resources and this single purpose would be defeated by its invalidity as to some of the persons against whom it is intended to operate, the act, irrespective of the severability clause, must be construed as not being severable and, therefore, ineffective for any purpose.

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

                                                                February 27, 1959

Honorable Dale M. Nordquist
State Senator, 20th District
P.O. Box 210
Centralia, Washington                                                                                                   Cite as:  AGO 59-60 No. 18

Dear Sir:

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

            (1) Can Initiative Measure No. 25 to the legislature, if enacted, limit or prohibit prospectively the right or power of any "person" as that term is defined therein, to apply for a federal license, or prevent the Federal Power Commission from granting the same, or bar the licensee from acting thereunder once it has been granted?

            (2) Can the initiative, if enacted, affect the right of the City of Tacoma to act, as licensee of the federal government, under an existing license granted by the Federal Power Commission?

            We answer both questions in the negative, for the reasons hereinafter set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            DUTY OF THE ATTORNEY GENERAL TO ISSUE AN OPINION ON THE CONSTITUTIONALITY OF AN INITIATIVE MEASURE TO THE LEGISLATURE WHEN REQUESTED BY A MEMBER OF THE LEGISLATURE.

            The general powers and duties of the Attorney General are set forth in RCW 43.10.030.  This statute provides, in part, as follows:

            "The attorney general shall:

            "(5) Consult with and advise the governor, members of the legislature and other state officers, and when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers;

            "(7) Give written opinions, when requested by either branch of the legislature, or any committee thereof, upon constitutional or legal questions;"

            In compliance with this express statutory mandate, this office has in the past given written opinions to members of the legislature, when requested, on questions concerning the constitutionality of any proposed legislation.  See AGO 1891-1892:78 [[1891-92 OAG 78]].  Our opinions are merely advisory and are intended to assist the legislature, as far as we are able, in enacting laws which do not conflict with either the federal or state constitutions.  In giving an opinion onproposed legislation, this office is not passing upon a matter which is within the realm of the courts.  InState ex rel. Donohue v. Coe, 49 Wn. (2d) 410, 302 P. (2d) 202, the court said, in discussing a proposed initiative measure:

            "'With the ultimate question of the validity of this proposed legislation,we have no present concern.  Courts will not determine such questions as to contemplated legislation which may, perchance, never be enacted.  (State ex rel. Griffiths v. Superior Court (1916) 92 Wash. 44, 159 Pac. 101, 162 Pac. 360).'"  (Emphasis supplied.)

            Simply stated, the statutory duty of this office ends in this respect where the power of the judiciary begins.  As long as the question presented concerns merely proposed legislation, this office is obliged to issue an opinion upon the request of a legislator.  However, once the act has been passed by the legislature, we presume it to be constitutional and, thereafter, any question as to its validity or constitutionality is within the realm of the courts, and is not a proper subject for an opinion of this office.

             [[Orig. Op. Page 3]]

            Since an initiative measure to the legislature is simply a petition by a number of qualified voters (RCW 29.79.120), requesting the legislature to enact the measure submitted, we can conceive no difference between it and any other proposed bill, in so far as our statutory duty to advise the legislature is concerned.  Initiative 25 became proposed legislation when the required number of signatures were obtained and it was certified by the secretary of state to the legislature.  Therefore, at this time, a member of the legislature is entitled to an opinion of this office as to the constitutionality thereof.  The fact that the initiative may subsequently be submitted to the people for a vote (see RCW 29.79.270) does not alter or remove our duty imposed by statute.

            It is for these reasons that we issue this opinion on the matter here presented.

            HISTORY OF THE CONTROVERSIAL COWLITZ DAMS PROJECT

            Before beginning our discussion of the questions presented above, we believe it is necessary, in order to understand and evaluate the present status which the City of Tacoma enjoys as licensee of the federal government, that we consider the prior administrative and judicial proceedings involved in this matter.  Therefore, we have outlined these proceedings as follows:

            In 1948, the City of Tacoma, a municipal corporation in the State of Washington, filed with the Federal Power Commission its declaration of intention to construct two power dams on the Cowlitz river.  The commission ruled that the river was navigable below the proposed project site and that its construction would affect navigation and interstate commerce and, hence, a federal license was required.  (16 U.S.C.A., § 816) Thereafter, Tacoma filed its application for a license, which was accompanied by the maps, specifications, and estimates of the cost of the project.  (16 U.S.C.A., § 802 (a))  At a hearing ordered by the commission to determine whether the license should be issued, the Departments of Fisheries and Game of the State of Washington appeared as interveners and objected to the issuance of a license.  At the conclusion of the hearing, the commission, on November 27, 1951, rendered its opinion, findings, and order granting the license.  The commission specifically found that the City of Tacoma had submitted satisfactory evidence of compliance with the requirements of all applicable state law in so far as was necessary to effect the purposes of a license for the project.  (16 U.S.C.A., § 802 (b))  After a petition for a rehearing was denied, the interveners appealed to the Ninth Circuit Court of Appeals of the United States.

            On appeal, in the case of Washington Department of Game v. Federal Power Commission, 207 F. (2d) 391, the interveners challenged the authority of the commission to issue the license, arguing that the City of Tacoma had not complied with applicable state law, in that

             [[Orig. Op. Page 4]]

            "3. Both of the proposed dams exceed the 25-foot height limit which the Washington legislature put upon the construction of dams on the Cowlitz River. . . . The Columbia River Sanctuary Act, chapter 9, § 1, State of Washington Laws of 1949."

            This act is entitled:

            "AN ACT relating to the protection of anadromous fish life in the rivers and streams tributary to the lower Columbia River and declaring an emergency."

            Section 1 of the act reads:

            "All streams and rivers tributary to the Columbia River downstream from McNary Dam are hereby reserved as an anadromous fish sanctuary against undue industrial encroachment for the preservation and development of the food and game fish resources of said river system and to that end there shall not be constructed thereon any dam of a height greater than twenty-five (25) feet that may be located within the migration range of any anadromous fish as jointly determined by the Director of Fisheries and the Director of Game, nor shall waters of the Cowlitz River or its tributaries or of the other streams within the sanctuary area be diverted for any purpose other than fisheries in such quantities that will reduce the respective stream flows below the annual average low flow, as delineated in existing or future United States Geological Survey reports:  Provided, That when the flow of any of the streams referred to in this section is below the annual average, as delineated in existing or future United States Geological Survey reports, water may be diverted for use, subject to legal appropriation, upon the concurrent order of the Director of Fisheries and Director of Game."  (Emphasis supplied.)

            The court stated:

            "The rationale of the objectors' contentions has already been considered and rejected by the Supreme Court in First Iowa Hydro-Elec Co-op. v. Power Commission, 1946, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143."

             [[Orig. Op. Page 5]]

            Therefore, the court concluded:

            "The Commission in our case acted within the scope of its discretion in not requiring Tacoma to show compliance with the laws of the State of Washington regulating the construction of dams in Washington, because compliance with those laws would have prevented the development of the Cowlitz Project; and in the opinion of the Commission of the Cowlitz Project was 'best adapted to the comprehensive plan' for the development of a concededly navigable stream. . . ."

            In answer to the contention of the interveners that Tacoma, as a creature of the State of Washington, could not act in opposition to the policy of the state or in derogation of its laws, the court said:

            "Again, we turn to the First Iowa case, supra.  There, too, the applicant for a federal license was a creature of the state and the chief opposition came from the state itself.  Yet, the Supreme Court permitted the applicant to act inconsistently with the declared policy of its creator, and to prevail in obtaining a license.

            "Consistent with the First Iowa case, supra, we conclude thatthe state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States. . . ." (Emphasis supplied.)

            The order of the commission was affirmed.  A petition for a writ of certiorari was denied by the United States Supreme Court.  347 U.S. 936.

            At the time the circuit court filed its opinion, Tacoma's first appeal(Tacoma v. Taxpayers, 43 Wn. (2d) 468, 262 P. (2d) 214), was pending before the supreme court of this state.  This action had been instituted by the City of Tacoma against the taxpayers of Tacoma and the Directors of Game and Fisheries of this state, to determine the validity of a proposed bond issue which was necessary to finance the power project.  The trial court sustained a demurrer to the complaint and, after the city refused to plead further, the action was dismissed with prejudice.  The appeal followed.

            Our court, in the course of its opinion, was required to pass upon the validity of the same statutes on which the interveners relied in the Circuit  [[Orig. Op. Page 6]] Court of Appeals.  In reference thereto, the court said:

            "It may be conceded that fish in the waters of the state belong to the people of the state in their sovereign capacity, that the legislature may permit or prohibit the taking thereof, and that the Federal government has no ownership of, or power to regulate the taking of, fish in navigable waters.  (Citations omitted.)  Nevertheless, where these state laws are in direct conflict with the Federal power act,they are invalid under the terms of the supremacy clause contained in article VI of the United States constitution.  This provision reads:

            "'This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.'"

            "Where, as here, the state and Federal acts cannot be reconciled or consistently stand together, the action of the state even under its police power must give way. . . ."  (Emphasis supplied.)

            In reply to the contention that the power of Tacoma to construct dams on rivers had been taken away by the legislature, with respect to the Cowlitz river, by the enactment of the Fish Sanctuary Act (chapter 9, Laws of 1949), the court said:

            "The legislature must be presumed to have known when enacting that law that, for at least forty years, all classes of municipal corporations had been authorized by it to operate certain public utilities.  (Citations omitted.)  As last amended in 1947, the pertinent statute (Rem. Supp. 1947, § 9488 [cf. RCW 80.40.050]) includedpower to:

            "'Construct, condemn and purchase, purchase, acquire, add to, maintain and operate works, plants and facilities for the purpose of furnishing such city or town and the inhabitants thereof, and  [[Orig. Op. Page 7]] any other persons, with gas, electricity and other means of power and facilities for lighting, heating, fuel and power purposes. . . ."

            ". . .

            "The passage of chapter 9, Laws of 1949, does not purport to amend or repeal Rem. Supp. 1947, § 9488.  No reference whatever is made therein to municipal corporations or their right to engage in the production and sale of electric energy.  It cannot be viewed as a repeal of this statute by implication."  (Emphasis supplied.)

            The court, therefore, concluded that the City of Tacoma had complied with the state law with respect to the right of a municipality to engage in the business of developing, transmitting and distributing power and, having been granted a license by the Federal Power Commission, it stood in the same position as any other licensee under the Federal Power Act.  The judgment of the trial court was reversed, and the cause remanded for further proceedings.

            After a trial on the merits, the trial court determined that the construction of the dams would necessarily impede, obstruct, or interfere with public navigation, contrary to RCW 80.40.010, et seq., and, therefore, it enjoined the City of Tacoma from spending any sums of money relating to the hydroelectric project.  The second appeal to the state supreme court followed.

            The court, inTacoma v. Taxpayers, 49 Wn. (2d) 781, 307 P. (2d) 567, concluded that, although the trial court erred in issuing the injunction on the ground stated, the judgment could be sustained on the ground that the City of Tacoma, created by the state as a subordinate unit, did not have thepower and capacity to condemn the state owned lands previously dedicated to a public use under state statute and, in the absence thereof, it could not receive such power and capacity from a license granted by the Federal Power Commission.  The court held that this question of the capacity of Tacoma to act under the license had not been decided by the circuit court in its opinion.  The judgment of the trial court granting the injunction was, therefore, affirmed.

            Thereafter, the United States Supreme Court granted the petition filed by the City of Tacoma for a writ of certiorari.  355 U.S. 888.

            The court, in its opinion (357 U.S. 320 (1958) 2 L.Ed. 2d 1345, 78 S.Ct. 1209), stated:

             [[Orig. Op. Page 8]]

            ". . . upon judicial review of the Commission's order, all objections to the order, to the license it directs to be issued,  andto the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all. . . ." (Emphasis supplied.)

            The court then went on to hold that the contention that the City of Tacoma did not have any right to take or destroy property of the state and could not act in accordance with the terms of its federal license

            ". . . was raised and litigated in the Court of Appeals anddecided by its judgment.  But even if it might be thought that this issue was not raised in the Court of Appeals, it cannot be doubted that it could and should have been, for that was the court to which Congress had given 'exclusive jurisdiction to affirm, modify, or set aside' the Commission's order. . . ."  (Emphasis supplied.)

            In passing upon the contention that the court of appeals did not decide the question of the legalcapacity of the City of Tacoma to act under the license, the court cited the following language from the opinion of the circuit court upon which the respondents relied:

            "'However,we do not touch the question as to the legal capacity of the City of Tacoma to initiate and act under the license once it is granted.  There may be limitations in the City Charter, for instance, as to indebtedness limitations.  Questions of this nature may be inquired into by the Commission as relevant to the practicability of the plan, but the Commission has no power to adjudicate them.'"  (Emphasis supplied.)

            The court then said:

            "We believe that respondents' construction of this language is in error.  The questioned language expressly refers to possible 'indebtedness limitations' in the City's Charter and 'questions of this nature,'not to the right of the City to receive and perform, as licensee of the Federal Government under the Federal Power Act, the  [[Orig. Op. Page 9]] federal rights determined by the Commission and delegated to the City as specified in the license. . . ." (Emphasis supplied.)

            Therefore, the judgment of the supreme court of Washington was reversed and the cause remanded.  The judgment entered by the supreme court of this state, in accordance with the mandate of the United States supreme court, reads, in part, as follows:

            "1. The United States has exclusive and paramount jurisdiction over navigable waters, under the commerce clause of the United States Constitution, and, therefore,any State Laws are inapplicable to the Mayfield and Mossyrock [Cowlitz dams] Hydroelectric Project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of the appellant's license for said project, or which would enable the State of Washington or any State official thereof to exercise a veto over said project, and

            ". . .

            "10. This judgment is final and is binding upon the State of Washington, its Directors of Fisheries and Game, and its citizens, including the Taxpayers of Tacoma, and any other interested parties thereto, and all of said parties, and the pleadings filed by them contained in the records and files of this case, are hereby dismissed with prejudice."  (Emphasis supplied.)

            There can be no doubt but that this judgment established the right of the City of Tacoma to proceed with the construction of the two dams on the Cowlitz river, as licensee of the federal government, and that existing state laws, which could prevent completion of the project, were inapplicable thereto.  We now turn to Initiative No. 25.

            INITIATIVE MEASURE NO. 25 TO THE LEGISLATURE

            Initiative Measure No. 25 to the legislature reads as follows:

            "AN ACT to conserve the state's fishery resources by limiting the powers of any person authorized to construct or operate dams or to appropriate water; defining 'person'; and providing a saving clause to  [[Orig. Op. Page 10]] preserve the validity of the remainder of this act if other parts are held invalid.

            "BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

            "Section 1.  For the purpose of conserving the State's fishery resources the powers of any person authorized to construct or operate dams or to appropriate water in the Stateare hereby limited in that no such person shall construct, complete or operate, either for himself or as an agent or independent contractor for another,any dam or other obstruction over 25 feet high on any tributary stream of the Columbia River downstream from McNary Dam, including the Cowlitz River and its tributaries, within the migration range of anadromous fish as jointly determined by the Directors of Fisheries and Game, except the north fork of the Lewis River and the White Salmon River (Big White Salmon River), nor shall any such person obtain or use a federal license for such purpose; nor shall any such person divert any water from any such stream in such quantities that will reduce the respective stream flows below the annual average low flow as set forth in existing or future United States Geological reports; PROVIDED THAT, when the flow is below such annual average low flow, then such person may divert water, subject to legal appropriation, only upon the concurrent order of the Directors of Fisheries and Game.

            "Sec. 2.  The term 'person' as used in Section 1 herein shall include any municipal corporation or other political subdivision of this state or another state, any other public or quasi-public corporation, any private corporation or other organization organized under the laws of this state or another state, and any individual or group of individuals.

            "Sec. 3.  If any section or provision or part thereof of this act shall be held unconstitutional or for any other reason invalid, the invalidity of such section, provision or part thereof shall not affect the validity of the remaining sections, provisions or parts thereof which are not judged to be invalid or unconstitutional."  (Emphasis supplied.)

             [[Orig. Op. Page 11]]

            In your letter you indicated that you desired an opinion of this office discussing the pros and cons of the entire Tacoma dam situation.  In order to comply with this request and to completely and adequately answer the questions paraphrased at the outset of this opinion, we must consider the various arguments and theories that could be advanced by the proponents and opponents of the initiative.  Therefore, we will proceed to discuss separately the following issues:

            (1) Whether this initiative, if passed, would constitute a limitation of power or capacity as would appear from a reading of the act, or whether, looking beyond the mere language used therein and considering its operation and effect, it constitutes a prohibition against building any dam over twenty-five feet high on the navigable rivers specified.

            (2) Is the act invalid in part and if so, does the invalidity of such part invalidate the entire act so as to render the act ineffective for any purpose?

            (3) If the act is held by the court to be a limitation of capacity and severable, could the initiative prevent the City of Tacoma from proceeding with the construction of its project under the terms and condition of its federal license on the Cowlitz river?

             Throughout our discussion of this initiative and the questions stated above, the following rules of statutory construction should be kept in mind:

            (1) The presumption is that every act passed by the legislature is constitutional.  SeeState ex rel. O'Connell v. Meyers, 51 Wn. (2d) 454, 319 P. (2d) 828;State ex rel. Troy v. Martin, 38 Wn. (2d) 501, 230 P. (2d) 601;Gruen v. Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651; see also, Washington Digest, Constitutional Law, Key 48.

            (2) All doubts as to whether or not the legislature had the power to pass a given enactment must be resolved in favor of the legislature.  SeeIn re Bartz, 47 Wn. (2d) 161, 287 P. (2d) 119; State ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162.

            (3) In arriving at the intent of the legislative body, the first resort of the courts is to the context and subject matter of the legislation, because the intention of the lawmaker is to be deduced, if possible, from what it said.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745; Driscoll v. City of Bremerton, 48 Wn. (2d) 95, 291 P. (2d) 642.

            (4) Where the language of a statute is plain, free from ambiguity, and devoid of uncertainty, there is no room for construction, since the  [[Orig. Op. Page 12]] meaning will be discovered from the wording of the statute itself.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693.  See also, 2 Sutherland, Statutory Construction, p. 333, § 4701.

            (5) The lawmaking body is presumed to be familiar not only with its own prior legislation relating to the subject of legislation, but also with the court decisions construing such former legislation.  Hatzenbuhler v. Harrison, supra; Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858.

            (6) The members of the legislature are presumed to know the meaning of the words they write into their enactments.  Union Oil Co. of California v. State, 2 Wn. (2d) 436, 98 P. (2d) 660; see also,In re Raine's Estate, 193 Wash. 394, 75 P. (2d) 933.

            (7) Statutory words to be construed must be given their usual and ordinary meaning.  SeeMiller v. City of Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863;Pacific Northwest Alloys, Inc., v. State, 49 Wn. (2d) 702, 306 P. (2d) 197.

            Furthermore, since Initiative 25, if passed by the legislature, must be considered an act of the legislature, we refer herein, when construing the initiative, to the "intent of the legislature" in enacting this measure.  We recognize, however, that under Amendment 7 of the Washington State Constitution that an initiative measure to the legislature

            ". . . shall either be enacted or rejected without change or amendment by the legislature before the end of such regular session."  (Emphasis supplied.)

            Applying the above rules, it is clear that the sole purpose or object of the initiative, if enacted by the legislature,would be to preserve the state's fishery resources.  To accomplish this purpose, it purports to: (1) limit the powers of any person (which term includes within its definition municipal corporations) to the extent that no dam over twenty-five feet high could be constructed, completed, or operated in the area specified; (2) prohibit any person from obtaining or using a federal license for such purpose; and, (3) limit the diversion of water.

            (1) LIMITATION OF CAPACITY OR PROHIBITION AGAINST HIGH DAMS.

            The initial question is whether this initiative, if passed, would constitute a limitation of power or capacity as would appear from a reading of the act, or whether, looking beyond the mere language used therein and  [[Orig. Op. Page 13]] considering its operation and effect, it constitutes a prohibition against building any dam over twenty-five feet high on the navigable rivers specified.

            The initiative, if enacted by the legislature of this state, would be presumed constitutional, and the court would be reluctant to say, we believe, that the legislature (1) did not know the meaning of the words used, (2) did not realize the "operation and effect" thereof, or (3) acted indirectly to circumvent the provisions of the Federal Power Act.  However, we wish to point out that should the court, if called upon to construe this law, consider it, in effect, as an attempt by indirect means to invade the domain of federal authority and a prohibitory act, the entire act would be struck down as being in conflict with the provisions of the Federal Power Act.  SeeTacoma v. Taxpayers, 43 Wn. (2d) 468, 262 P. (2d) 214; Tacoma v. Taxpayers, 49 Wn. (2d) 781, 307 P. (2d) 567; First Iowa Hydro-Electric Co-op v. Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143.

            InTacoma v. Taxpayers, 43 Wn. (2d) 468, the court said:

            "The Federal power act as construed in the Appalachian Electric case, supra, and the First Iowa case, is the supreme law of the land and, under the supremacy clause (Art. VI U.S. constitution), is binding upon this court.  On the authority of those decisions, we musthold that Congress had the constitutional power to enact the Federal power act and that, in doing so, it intended to exercise its full jurisdiction to authorize the power commission to supersede state laws purporting to prohibit or limit the construction of dams on navigable streams.  By passing the act, Congress preempted the entire field and authorized the power commission to issue licenses for such construction upon such conditions as it deemed proper."  (Emphasis supplied.)

            InTacoma v. Taxpayers, 49 Wn. (2d) 781, the court, after discussing the incapacity of Tacoma, as a municipal corporation, to condemn state land dedicated to a public use, stated:

            "We find nothing inconsistent with this conclusion in First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U.S. 152, 90 L.Ed. 1143, 66 S.Ct. 906 (1946).  Therein, the court held (rightfully,  [[Orig. Op. Page 14]] we believe) that a state could not, by statute, require the petitioner to secure a state permit to build the dam when the subject matter of the state statutory prohibitions was exclusively within the jurisdiction of the Federal government. . . ."

            After quoting a portion of the language quoted above from the first Tacoma case, the court went on to say:

            "In the instant case, the subject matter -the inherent inability of the city to condemn state lands dedicated to public use -does not present a question ofstate statutory prohibition; it presents a question oflack of state statutory power in the city.  It does not present a Federal question; it presents a question peculiarly within the jurisdiction of the state of Washington."

            Since this question is very close and since we believe the act unconstitutional for another reason, we need not express an opinion on this question at this time.

            (2) IS THE ACT INVALID IN PART, AND IF SO, DOES THE INVALIDITY OF SUCH PART, INVALIDATE THE ENTIRE ACT SO AS TO RENDER THE ACT INEFFECTIVE FOR ANY PURPOSE?

            We believe that if this initiative were enacted, it could be construed as representing the exertion of two distinct powers of state government, to wit:  (1) the police power of the state to preserve its fishing resources; (2) the power of the state to define and control the power or capacity of subordinate units of government.

            First, we will consider the exercise of the police power to preserve the fishing resources.

            Under the authority ofTacoma v. Taxpayers, 43 Wn. (2d) 468, we must conclude that

            "Where . . . the state and Federal acts cannot be reconciled or consistently stand together, the action of the state even under its police power must give way. . . ."  (Emphasis supplied.)

            The Federal Power Act, as construed by the United States Supreme Court inFirst Iowa Hydro-Electric Cooperative v. Federal Power Commission,  [[Orig. Op. Page 15]] 328 U.S. 152, United States v. Appalachian Electric Power Co., 313 U.S. 377,Tacoma v. Taxpayers, supra, is the supreme law of the land, and under the supremacy clause of Article VI of the United States Constitution, is binding upon the courts of this state.  SeeTacoma v. Taxpayers, 43 Wn. (2d) 468.

            Under the provisions of the Federal Power Act, the Federal Power Commission is authorized:

            "To issue licenses to citizens of the United States, or any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, to any state or municipality for the purpose of constructing, operating, and maintaining dams . . . across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several states . . ."  (Emphasis supplied.)

            Amunicipality, as that term is defined in the act, means

            ". . . a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power;" (16 U.S.C.A., § 796 (7)) (Emphasis supplied.)

            16 U.S.C.A., § 803, provides the conditions under which a license shall be issued by the commission.  Subsection (a) provides:

            "(a) That the project adopted, including the maps, plans, and specifications, shall be such asin the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes; . . ." (Emphasis supplied.)

            The conflict between the provisions of the initiative and the Federal Power Act, we believe to be obvious.  To the extent that they are in conflict, or  [[Orig. Op. Page 16]] inconsistent, the former would be inoperative.  As the supreme court of this state said in Tacoma v. Taxpayers, 43 Wn. (2d) 468:

            "It is the Federal power commission rather than the director of fisheries and the director of game of the state of Washington which under our constitutional government must pass upon the measures necessary for the protection of anadromous fish in the navigable streams in this state on behalf of the people of Washington as well as on behalf of all the people of the United States."

            We conclude that in so far as the initiative, if enacted, would attempt,under the exercise of the police power, to limit or prohibit the right or power of any

            ". . . citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State . . ."  (16 U.S.C.A., § 797 (e))

            to apply for, receive or act under a federal license, it would be invalid, since Congress in passing the Federal Power Act preempted the entire field and has authorized the Federal Power Commission to issue licenses to any of the above applicants for the construction of power projects, on navigable rivers, upon such conditions as it deems proper.  However, this does not resolve the problem as to municipal corporations because the state may, as to such corporations, exercise a greater and a peculiar power.  Thus, we must consider thepower of the state to define and control the power or capacity of subordinate units of government.

            As previously stated, we believe that the court could construe the enactment of the above initiative as an assertion, in addition to the police power, of the power to control the power or capacity of subordinate units of government.  We arrive at this conclusion by comparing the language of the initiative with that of the Fish Sanctuary Act (chapter 9, Laws of 1949, hereinbefore set forth on page four of this opinion) and by considering the construction placed upon the latter act by the court in Tacoma v. Taxpayers, 43 Wn. (2d) 468.  The court said in that case:

            "The passage of Chapter 9, Laws of 1949, does not purport to amend or repeal Rem. Supp. 1947, Sec. 9488 [Right of municipal corporations to engage in utility business.]  No reference whatever is made therein to municipal corporations, or their right  [[Orig. Op. Page 17]] to engage in the production and sale of electric energy.  It cannot be viewed as a repeal of this statute by implication.

            "Conceding that the legislature has the power to curtail or abolish appellant's present authority to engage in the electric utility business, we are convinced that it has not as yet exercised such power."  (Emphasis supplied.)

            Two of the general rules relative to the rights and powers of municipal corporations are as follows:

            (1) A municipal corporation is a body politic established by law as an agency of the state, and it has neither existence nor power away from its creator, the legislature, except such rights as may be granted to municipal corporations by the state constitution.  Lauterbach v. Centralia, 49 Wn. (2d) 550, 304 P. (2d) 656; 37 Am.Jur., Municipal Corporations, p. 618, 620, §§ 3 and 4.

            (2) The legislature may enlarge or diminish powers already granted by it to municipal corporations.  State ex rel. National Bank of Tacoma v. Tacoma, 97 Wash. 190, 166 Pac, 66; 37 Am.Jur., Municipal Corporations, p. 720, § 111; 2 McQuillin, Municipal Corporations (3rd Ed.) p. 12, § 404; 1 Cooley's Constitutional Limitations, chapter VIII, p. 393.

            At the present time, municipal corporations have the power, under RCW 80.40.050, to

            ". . . construct, condemn and purchase, purchase, acquire, add to, maintain and operate works, plants, facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel and power purposes, . . ."

            The initiative, like the Fish Sanctuary Act, does not expressly amend or partially repeal this statute.  However, since the initiative, unlike the Fish Sanctuary Act, would attempt to limit the power of all persons, including municipal corporations, this statute would be amended or partially repealed by implication in so far as it conflicted with the provisions of the initiative.

            While we recognize the rule that repeals or amendments of statutes by implication are not favored (seeState v. Becker, 39 Wn. (2d) 94, 234 P.  [[Orig. Op. Page 18]] (2d) 897; Generaux v. Petit, 172 Wash. 132, 19 P. (2d) 911; Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092), nevertheless, an amendment or repeal by implication is effected where the subsequent legislation is contrary to and inconsistent with, a former act.  Peterson v. King County, 199 Wash. 106, 90 P. (2d) 729; see also, In re Walder v. Belnap, 51 Wn. (2d) 99, 316 P. (2d) 119;State ex rel. Dept. of Finance, Budget and Business v. Thurston County, 6 Wn. (2d) 633, 108 P. (2d) 828; Bruner v. Little, 97 Wash. 319, 166 Pac. 1166; 50 Am.Jur., Statutes, p. 548, § 543.

            Therefore, if the act is severable, we believe that the legislature, by enacting Initiative 25, could limit prospectively the powers of subordinate units of government of this state to the extent that they could not construct any dam in the area specified over twenty-five feet high, or obtain or use a federal license for such purpose.  This, in our opinion, would merely constitute an assertion by the legislature of its powers over that which it created.

            Having determined that Initiative 25 would be invalid in part, that is, in so far as it attempts to limit the power to others than municipal corporations through the exercise of the police power, the question now to be determined is: Whether the invalidity of part would invalidate the entire act, or to state it another way, whether the act is severable so that the court could give effect to the remaining portion of the act as it affects municipal corporations after the invalid part is stricken?

            The general rule is that a portion of a statute will render the whole of it invalid where the constitutional and unconstitutional are so connected and interdependent that it cannot be believed that the legislature would have passed the one without the other orwhere the elimination of the invalid portion makes the remainder useless to accomplish the purposes of the legislature.  SeeIn re Hendrickson, 12 Wn. (2d) 600, 123 P. (2d) 322;Unemployment Comp. Dept. v. Hunt, 17 Wn. (2d) 228, 135 P. (2d) 89;Corwin Inv. Co. v. White, 166 Wash. 195, 6 P. (2d) 607.  2 Sutherland Statutory Construction, § 2404, p. 178.

            In the recent case ofNostrand v. Balmer, 153 Wash. Dec. 431, the court cited the following rule from In re Hendrickson, supra:

            "'. . . that the entire statute will fall where the constitutional and unconstitutional provisions are so connected and interdependent insubject matter, meaning, and purpose that it cannot be believed that the legislature would have passed the one without the other, or where the portion eliminated is so intimately connected with the rest of the statute as to make it useless to accomplish any of the purposes of the  [[Orig. Op. Page 19]] legislature.  [Citations.]'"  (Emphasis supplied.)

            The following statement is found in 2 Sutherland on Statutory Construction, page 181, § 2407:

            "A further inquiry which courts make in determining legislative intent and the separability of statutes is into the dominant or main purpose of the enactment.  Where the purpose of the statute is defeated by the invalidity of part of the act, the entire act is void.  Some courts have said that statutes may be upheld in part if severable, and the remaining and valid part is sufficient to accomplish the purpose of the act.  To frame the issue in this manner is inaccurate, as the decision must be that the particular act is or is not susceptible of partial enforcement, ascertaining the purpose of the act is useful only to reach this decision.  In this sense, 'purpose' of the act and legislative intent are co-extensive.

            "If by sustaining only a part of a statute, the purpose of the act is changed or altered, the entire act is invalid.  'Generally, if the statute is designed to accomplish a single purpose and is invalid in part, it is invalid in toto, unless the valid portion is sufficient to accomplish the legislative purpose, without the aid of the invalid part.  If it attempts to accomplish two or more objects and is void as to one, it may still be valid as to the others.'"  (Emphasis supplied.)

            In determining this question of severability, we must bear in mind that the initiative has a "severability clause" which reads as follows:

            "Sec. 3.  If anysection or provision or part thereof this act shall be held unconstitutional or for any reason invalid, the invalidity of such section, provision or part thereof shall not affect the validity of the remaining sections, provisions or parts thereof which are not judged to be invalid or unconstitutional."  (Emphasis supplied.)

            The nature and effect of a "severability clause" is discussed in 2 Sutherland on Statutory Construction, page 182, § 2408:

            "In the preparing of statutes it is considered good draftmanship to include in each bill a separability  [[Orig. Op. Page 20]] clause to the effect that if any part of the act be found invalid, the remainder of the act, nevertheless, shall be upheld.  Such clauses must be handled by the courts in deciding the separability of an enactment.  The separability clause is a comparatively modern legislative device, the courts having separated statutes long before its innovation.

            "Because of the very frequency of its presence, the separability clause is regarded as little more than a mere formality.  A few courts are decisive:  'The act in question contains a "saving clause" which it seems customary nowadays to insert in all legislation with the apparent hope that it may work some not quite understood magic.'"  (Emphasis supplied.)

            InState ex rel. Pennock v. Coe, 42 Wn. (2d) 569, 257 P. (2d) 190, the court stated:

            "The legislative purpose in inserting such a provision (severability clause) in any act is to take care of the contingency that a court might hold a part thereof to be unconstitutional.  The effect of including the provision is to minimize a possibility of a holding that the entire act is invalid.  Jensen v. Henneford, 185 Wash. 209, 53 P. (2d) 607.  It is merely an aid to interpretation and is not binding upon the court in any event.  11 Am.Jur. 848, Constitutional Law, sec. 156."  (Emphasis supplied.)

            See also, 2 Sutherland, Statutory Construction, page 182, § 2408 and 11 Am.Jur., Constitutional Law, p. 847, § 156, p. 949, § 157.

            In this instance the single and dominant aim and purpose sought to be accomplished by the enactment of Initiative 25 is stated in the title and section one thereof in language which is plain, clear and unambiguous -this purpose is to conserve the state's fishery resources.  To accomplish this expressed purpose, an attempt is made therein to limit the powers ofall persons authorized to construct any dams on the rivers specified over twenty-five feet high.  For the reasons previously stated, the act could not operate so as to prevent the construction ofany dam over twenty-five feet high by any person, as that term is defined therein, except municipal corporations of this state over which the legislature has absolute control.  Thus, the general plan, scheme or purpose to be accomplished by the legislation would be defeated by the invalidity as to some of the persons against whom the act was intended to operate.  If this legislation was intended to merely prevent  [[Orig. Op. Page 21]] as many "persons" as possible, under the law, from building dams in this area, and it was the intent of the legislature that the invalidity as to some against whom it was intended to operate should not affect its application as to others, such intent could have easily been manifested by clear language in the severability clause inserted in the act.  An example of a severability clause evidencing this intent could be drafted as follows:

            If any section or provision or part thereof of this act or its application to any person or circumstances shall be held unconstitutional or for any other reason invalid, the invalidity of such section, provision or part thereof or its application to any person or circumstances shall not affect the validity of the remaining section, provisions or parts thereofor its application to any person or circumstances which are not judged to be invalid or unconstitutional.

            By comparing the above severability clause with section 3 of the initiative, it is readily apparent that the only change or modification of the latter is the addition thereto of the underlined portion which was added for the purpose of evidencing the legislative intent discussed above.  Without such language or language of similar import, the courts should not hold the act severable in view of the resulting consequences.

            This conclusion is fortified by invoking the rule of statutory construction that the courts will not attribute to the legislature an intent to pass an unreasonable act.  See 2 Sutherland, Statutory Construction, p. 177, § 2403.  Likewise, it is a rule that the courts should not adopt a construction of a statute which would lead to an absurd result.  SeeState v. Lake City Bowlers' Club, Inc., 26 Wn. (2d) 292, 173 P. (2d) 783;In re Horse Heaven Irr. Dist., 11 Wn. (2d) 218, 118 P. (2d) 972.  Such would be the case here, if the act were held severable and operative only as to the power and/or capacity of municipal corporations.  There is nothing in the initiative which evidences an intent to treat municipal corporations any differently than any other person included therein, in fact, the contrary is shown by the attempt to prevent any and all dams from being constructed over twenty-five feet high byany and all persons by the same provisions.  Since the act is unquestionably invalid in part, as to some persons, it is not reasonable to conclude that the legislature, if it had known that its general purpose in passing the act would be defeated by the invalidity of part, and that dams over twenty-five feet high could be constructed by anyone except municipal corporations of this state, that it would have, nevertheless, passed the act intending it merely to limit the capacity of municipal corporations to construct dams and engage in the power business generally on the Cowlitz river.

             [[Orig. Op. Page 22]]

            A further argument against the act being severable is that it would prevent municipal corporations from proceeding with existing projects on the Cowlitz river BUT WOULD NOT OR COULD NOT PREVENT THE COMPLETION OF THE PROJECTS UNDER THE FEDERAL LICENSES ALREADY GRANTED.  For instance, should the act be upheld as a proper exercise of the power of the state to control its subordinate units of government and, therefore, prevent the City of Tacoma from complying with the terms and conditions of its federal license, the Federal Power Commission has the power under 16 U.S.C.A., § 820 to revoke the license.  However, the procedure which follows such revocation is clearly outlined therein to insure completion of the project for which the license was originally granted.  This section provides, in part, as follows:

            "In the event a decree revoking a license is entered, the court is empowered to sell the whole or any part of the project or projects under the license, to wind up the business of such licensee conducted in connection with such project or projects, to distribute the proceeds to the parties entitled to the same, and to make and enforce such further orders and decrees as equity and justice may require.  At such sale or sales the vendee shall take the rights and privileges belonging to the licensee and shall perform the duties of such licensee and assume all outstanding obligations and liabilities of the licensee which the court may deem equitable in the premises; and at such sale or sales the United States may become a purchaser, but it shall not be required to pay a greater amount than it would be required to pay under the provisions of section 807 of this title at the termination of the license."  (Emphasis supplied.)

            Therefore, under the authority of the above section, the United States, a private corporation, a group of citizens or an individual citizen could purchase an existing license of any municipal corporation of this state and thereafter proceed with the construction of the dams at their present sites on the Cowlitz river under the terms and conditions of the existing license approved and granted by the Federal Power Commission.  Hence, the courts, in the absence of language which is plain, clear and unambiguous, should not place an unrealistic, illogical and unreasonable construction upon the act by applying it to municipal corporations where the elimination of the invalid portion makes the remainder useless to accomplish the purposes of the legislature.

            We recognize that an argument may be made that, in view of the legislative history of the Fish Sanctuary Act and the various court decisions on the  [[Orig. Op. Page 23]] subject, that the legislature, by passing the act, would intend to limit the powers of municipal corporations even though it could not limit the powers of any other person or corporation because of the Federal Power Act.

            Although this question, like the first question discussed above is very close, we feel that there is more merit in the argument that the invalidity of the application to some persons invalidates the entire act, since the purpose of the act is to preventall dams in the area over twenty-five feet high and this purpose would be defeated by declaring it invalid as to some but not all "persons" who are authorized to construct dams on this river.  THEREFORE, IT IS OUR OPINION THAT THE ACT IS NOT SEVERABLE AND, HENCE, WOULD BE INEFFECTIVE FOR ANY PURPOSE IF PASSED BY THE LEGISLATURE.

            However, we will proceed with a discussion of the third question in order that you may be afforded the full benefit of our research and reasoning.

            (3) IF THE ACT IS HELDBY THE COURT TO BE A LIMITATION OF CAPACITY OF MUNICIPAL CORPORATIONS AND SEVERABLE, COULD THE INITIATIVE PREVENT THE CITY OF TACOMA FROM PROCEEDING WITH THE CONSTRUCTION OF ITS PROJECT, UNDER THE TERMS AND CONDITIONS OF ITS FEDERAL LICENSE, ON THE COWLITZ RIVER?

            The City of Tacoma is a municipal corporation of the State of Washington, and, therefore, as previously stated, it has neither existence nor power away from its creator, the state legislature, except such rights as may be granted to all municipal corporations by the state constitution.  Lauterbach v. Centralia, supra.  The legislature which has granted Tacoma certain rights or powers in respect to engaging in the electric power business may enlarge or diminish these rights or powers by uniform legislation.

            At the time the Federal Power Commission granted the City of Tacoma its federal license, there was no limitation, under existing state law, upon the power or capacity of municipal corporations in respect to their right to engage in the business of producing power on the Cowlitz river.  SeeTacoma v. Taxpayers, 43 Wn. (2d) 468.  In that case the court said:

            "Having been granted a license by the power commission, we hold that the appellant [Tacoma] isat the present time in the same position as any other licensee under the act."  (Emphasis supplied.)

            The court went on to state:

             [[Orig. Op. Page 24]]

            "The passage of chapter 9, Laws of 1949, (The Fish Sanctuary Act) does not purport to amend or repeal Rem.Supp. 1947, § 9488.  No reference whatever is made therein to municipal corporations or their right to engage in the production and sale of electric energy.  It cannot be viewed as a repeal of this statute by implication.

            "Conceding that the legislature has the power to curtail or abolishappellant's present authority to engage in the electric utility business, we are convinced that it has not as yet exercised such power."  (Emphasis supplied.)

            We recognize the latter statement quoted is dicta, but it is of assistance to us in this instance, in that it reflects the thinking of our court on the power of the state legislature by appropriate legislation to limit the power presently possessed by municipal corporations in respect to their right to engage in the power business.

            It is our opinion that the enactment of Initiative 25 by the legislature could affect the right of the City of Tacoma to proceed with the construction of its dams on the Cowlitz river under its existing federal license, if construed as a limitation of capacity and severable, unless there is some interest which the federal government has in seeing the project completed and which it may assert and protect against any state action which would, in effect, prevent the completion of the project.

            In 11 Am.Jur., Constitutional Law, p., 870, § 174, we find the following statement:

            "Among the matters which are implied in the Federal Constitution, although not expressed therein, is that the National Government may not, in the exercise of its powers, prevent a state from discharging its ordinary functions of government.  This corresponds to the prohibition that no state can interfere with the free and unembarrassed exercise by the Federal Government of all powers conferred upon it.  In other words, the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other.  Therefore, whenever the Federal power is exerted within what would otherwise be the domain of state power,the justification of the exercise of the Federal power must clearly appear."  (Emphasis supplied.)

             [[Orig. Op. Page 25]]

            The interest and/or power of the federal government in this matter must be found in the Federal Power Act.  This act, when passed, represented a major change in national policy and clearly indicates an intention on the part of Congress to secure a comprehensive development of national resources and not merely to prevent obstructions to navigation.  First Iowa Hydro-Electric Co-op. v. Power Commission, supra.  There is no doubt that the federal government has an interest, after granting a license, in seeing that the project is completed in accordance with the terms and conditions upon which the license was issued.  To insure compliance, the Federal Power Commission is given the authority:  (1) to enjoin violations of its orders; (2) to enforce compliance with its orders; or, (3) to revoke the license for violations of the terms and conditions thereof.  See 16 U.S.C.A., §§ 820, 825 (m) and 825 (p).

            Although the act purportedly gives the Federal Power Commission the right to enforce compliance with itsorders by appropriate proceedings in the United States district court, the type or nature of the order which may be so enforced is not defined therein.  Our exhaustive research of this entire area of the law has failed to reveal any decision by a state or federal court which has passed upon the question of whether an order of the commission granting a license and imposing obligations, as well as conferring federal rights on the licensee, is such an order that may be enforced by the commission so as to require or compel a licensee to proceed with the construction of a project.

            In so far as the City of Tacoma is concerned, it must be continually borne in mind that we are here concerned with a subordinate unit of state government, as well as a licensee of the Federal Power Commission.  The dual relationship must be recognized and the supremacy of the respective sovereigns must be established.  This problem was before the United States supreme court in the Cowlitz case; however, the opinion in that case did not decide that issue and the question remains open at this time.  We must conclude, by applying the universally accepted rule of the absolute power a sovereign state has over its municipal corporations, and in the absence of any judicial decisions on the question, that the legislature could by enacting Initiative 25 prevent Tacoma from proceeding with the construction of the dams on the Cowlitz river if the initiative were construed by the courts as a limitation of capacity and severable.  The only recourse available to the Federal Power Commission would be to revoke the federal license.

            This view is in accord with the statement made by our court inTacoma v. Taxpayers, 49 Wn. (2d) 781, concerning the separation of powers between the national and state governments:

             [[Orig. Op. Page 26]]

            "The Federal government may not confer corporate capacity upon local units of government beyond the capacity given them by their creator, and the Federal power act, as we read it, does not purport to do so.

            "If it be held that the Federal government may endow a state created municipality with powers greater than those given it by its creator, the state legislature, a momentous and novel theory of constitutional government has been evolved thatwill eventually relegate a sovereign state to a position of impotence never contemplated by the framers of our constitutions, state and Federal."  (Emphasis supplied.)

            (We are aware, of course, that the above case was reversed by the United States supreme court, 357 U.S. 320, but it was not reversed on the above question.)

            In an attempt to fortify the conclusion stated above or to affirmatively establish the power of the commission in respect to the "orders" it may enforce, we made an inquiry which was directed to the Federal Power Commission, as to whether the commission (as an alternative to revocation of a federal license) has the power to require specific performance of a licensee of the terms and conditions of the license where the licensee refuses or fails to proceed with the construction of the project.  We were informed by a letter from the commission, dated December 8, 1958, that:

            "The authority of the Commission under the Federal Power Act to require compliance with its ordersis not unlimited.  In connection with the Cowlitz Project of the City of Tacoma, Project No. 2016, the State of Washington or the Attorney General could file a petition with the Commission requesting that the Commission require the City of Tacoma to show cause why it should not be compelled to complete certain construction.  In such a proceeding the City of Tacoma, of course, would be represented and therefore would havean opportunity to test the authority of the Commission, and the facts and applicable authority could be fairly and fully tested.  In the absence of the City of Tacoma, it would not appear to be appropriate to state what license requirements could be enforced by the Commission under the circumstances.  A similar  [[Orig. Op. Page 27]] situation does not seem to have arisen in the construction of another project.

            ". . .

            "If a licensee should refuse to comply with a commission order, an appropriate proceeding could be sought under Section 314 of the Federal Power Act (16 U.S.C.A. 825m) in a U.S. District Court."  (Emphasis supplied.)

            From our reading of this letter we believe that the commission regards the question of its power to enforce the type of order here in question as open to judicial construction of the applicable provisions of the Federal Power Act.  Therefore, until the courts engraft an exception to the general rule of the absolute control which our legislature has over the municipal corporations of this state, we must adhere to the general rule and refuse to concede that the commission has the power to require a municipal corporation to act in derogation of state law -such would be the case should Initiative 25 be passed by the legislature and thereafter be upheld by the court as a proper exercise of the power of the state.

            In passing, we should mention we have considered the theory which could be advanced in respect to the power of legislature over the property of a municipal corporation where the distinction is recognized between property held in a governmental or proprietary capacity.  See 37 Am.Jur, Municipal Corporations, p. 701, § 92; 116 A.L.R., Annotation 1037; 56 A.L.R., Annotation 365.  The distinction between governmental and proprietary functions of a municipal corporation has been recognized by the supreme court of the State of Washington, but such recognition has been generally limited to tort actions where the question of the immunity of the municipal corporation is raised.  SeePort of Seattle v. International Longshoremen's and Warehousemen's Union, 152 Wash. Dec. 267 [[52 Wn. 2d 317]].  We rejected the theory above, since it is stated in 37 Am.Jur., p. 704, § 92:

            "The Supreme Court of the United States has declared that although such a distinction is often made, in none of the cases in that Court has any power, right, or property of a municipality been held to be protected by the contract clause or the Fourteenth Amendment to the Federal Constitution, and hasspecifically held that they do not apply as against the state in favor of its own municipalities."  (Emphasis supplied.)

            SeeWilliams v. Baltimore, 289 U.S. 36, 77 L.Ed. 1015, 53 S.Ct. 431;Newark v. New Jersey, 262 U.S. 192, 67 L.Ed. 943, 43 S.Ct. 539;  [[Orig. Op. Page 28]] Trenton v. New Jersey, 262 U.S. 182, 67 L.Ed. 937, 43 S.Ct. 534, 29 A.L.R. 1471.

            CONCLUSION:

            We regret that, because of the several very serious and close legal questions of constitutional law and statutory construction, we found it necessary to discuss in detail herein many issues and problems which might, to the casual reader, appear to unduly lengthen this opinion.  However, we feel, in an opinion of this nature, that we could not sacrifice any substance for the sake of brevity and, at the same time, properly comply with our statutory duty of completely and adequately advising you on the proposed legislation here being considered.  You must realize that it would be impossible for us to give you any legal analysis of the questions presented without considering the history of the Cowlitz controversy and the decisions of the state and federal courts relative thereto, because Initiative 25, if enacted, would constitute another link in this controversial chain, and therefore, could not be considered separate and apart therefrom.

            As we stated at the outset, this opinion is merely advisory and reflects only the views of this office on this proposed legislation.  If this initiative were passed by the legislature it would be presumed constitutional, and, in an action to test the constitutionality thereof, the courts would be required to pass upon some, if not all of the issues herein considered.  We readily admit that the courts could possibly arrive at a conclusion different than the one stated herein because there is authority for placing a contrary construction upon the act.

            For the purpose of clarity and to insure that our discussion of the various questions and theories considered herein will not be misunderstood if read and considered out of context, we state our single conclusion as follows:

            A majority of the attorneys in this office who have reviewed and considered this matter are of the opinion that the initiative, if enacted, would be invalid in its application to all persons, as that term is defined therein, except municipal corporations of this state.  Since thesingle expressed purpose of the initiative is to conserve the state's fishery resources and this single purpose would be defeated by its invalidity as to some of the persons against whom it is intended to operate, the act, irrespective of the severability clause, must be construed as not being severable and, therefore, ineffective for any purpose.

             [[Orig. Op. Page 29]]

            We trust our analysis of this matter will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
A
ttorney General

ROBERT J. DORAN
Assistant Attorney General

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