Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGO 1960 No. 120 - May 31, 1960
AGO Opinion Header Image
John J. O'Connell | 1957-1968 | Attorney General of Washington

SCHOOLS - VOTING REQUIREMENTS FOR SPECIAL SCHOOL EXCESS LEVY ELECTION - WHAT CONSTITUTES A GENERAL ELECTION UNDER § 1, CHAPTER 290, LAWS OF 1959 AND THE 17th AMENDMENT TO THE WASHINGTON STATE CONSTITUTION.

(1) The voting requirements for a special school excess levy election are to be based on the last general election in the school district in accordance with the provisions of § 1, chapter 290, Laws of 1959.  (2) An election at which members of the county board of education and school district directors are elected constitutes a general election within the meaning and intent of § 1, chapter 290, Laws of 1959, and the 17th Amendment to the Washington State Constitution.

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

                                                                   May 31, 1960

Honorable Gordon L. Walgren
Prosecuting Attorney
Kitsap County
245 Fourth Street Building
Bremerton, Washington                                                                                          Cite as:  AGO 59-60 No. 120

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on two questions relating to special school excess levy elections.  We paraphrase your questions as follows:

            (1) Are the voting requirements for a special school excess levy election to be based on the last general election in the school district in accordance with the provisions of § 1, chapter 290, Laws of 1959?

            (2) If question one is answered in the affirmative, is an election at which members of the county board of education and school district directors are elected, a general election within the meaning and intent of § 1, chapter 290, Laws of 1959, and the 17th Amendment to the Washington State Constitution?

            We answer both questions in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Before beginning our discussion of the questions presented above, we deem it advisable, if not necessary, to briefly outline the constitutional basis and legislative history of the statutes dealing with school district excess levy elections.

            The 17th Amendment to the state constitution, approved November, 1944, established a forty mill cumulative limitation on tax levy assessments.  In this amendment the people prescribed the minimum standards which must be met by any taxing district, including school districts, before any excess tax may be levied.  See, Henderson v. Tumwater, 46 Wn. (2d) 758, 285 P. (2d) 119 (1955).  It provides in pertinent part that the "forty mill limitation" may be exceeded only:

            "(a) By any taxing district when specifically authorized so to do by a majority of at least three fifths of the electors thereof voting on the proposition to levy such additional tax submitted not more than twelve months prior to the date on which the proposed levy is to be made and not oftener than twice in such twelve month period, either at a special election or at the regular election of such taxing district, at which election the number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election;"  (Emphasis supplied.)

            Prior to 1953 the statute implementing the above constitutional provision had increased the requirements thereof by providing that the forty per cent validating vote had to be based, in all cases, on the last precedinggeneral state election.  See § 1, chapter 176, Laws of 1941.  However, in 1953, presumably because of the interpretation given the term "general election" by this office in AGO 51-53 No. 479 [[to O. H. Olson, State Representative on February 6, 1953]], the legislature "general election" by this office in AGO 51-53 No. 479, the legislature amended the earlier law by adding a proviso thereto whereby school districts were, for the first time, placed in a separate classification and their validating vote requirement returned to the minimum prescribed in the constitution.  See § 1, chapter 189, Laws of 1953.  In other words, school districts thereafter were required only to obtain a vote of forty per cent of those who voted at the preceding general (rather than general state) election.  The law in this respect remained unchanged through 1958 (see § 1, chapter 93, Laws of 1955; § 1, chapter 32, Laws of 1957) although there was some confusion following the 1957 session because the legislature passed two acts amending § 1, chapter 93, Laws of 1955.  See AGO 57-58 No. 92 [[to Prosecuting Attorney, Grant County on July 5, 1957]].

             [[Orig. Op. Page 3]]

            This brief history brings us to the legislation giving rise to the questions you have submitted.

            During its 1959 session the legislature once again passed two acts, chapter 290 (Substitute Senate Bill 170), and chapter 304 (House Bill 125), both purporting to amend § 1, chapter 32, Laws of 1957 (RCW 84.52.050, 84.52.052).  The question of which act became effective, in so far as "school district excess levy elections are concerned," is of general state wide [[statewide]]concern and of vital interest to school districts.  Section 1, chapter 290, Laws of 1959, provides in pertinent part as follows:

            ". . .Provided, That the total number of persons voting at such special election must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:  Provided further, That the total number of persons voting on an excess levy for school district purposes or for cities and towns at any such special election of any school district or of any city or town must constitute not less than forty percent of the voters in said taxing district or in any city or town, as the case may be who voted at the last preceding general election in such district."  (Emphasis supplied.)

            Section 8, chapter 304, Laws of 1959, reads in pertinent part as follows:

            ". . .Provided, That the total number of persons voting on an excess levy for school district purposes at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:  Provided further, That the total number of persons voting on an excess levy for school district purposes at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district."  (Emphasis supplied.)

            It is apparent that if § 1, chapter 290, is controlling, the law since 1953 will remain unchanged.  However, should it be determined that § 8, chapter 304, governs the school elections the forty percent validating vote would have to be based on the last preceding general state as well as the last preceding general election in the district.

             [[Orig. Op. Page 4]]

            In our opinion there are three separate and persuasive arguments why chapter 290 must be held to be controlling: (1) Statutory construction of RCW 1.12.025; (2) Legislative intent of 1959 legislature; (3) Constitutional considerations.  We will discuss these arguments seriatim.

            (1) Statutory Construction of RCW 1.12.025

            In 1955 the legislature enacted chapter 162, relating to the construction of statutes passed at the same session of the legislature.  Codified as RCW 1.12.025, it reads as follows:

            "If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control."  (Emphasis supplied.)

            Chapter 290, Laws of 1959 (Substitute Senate Bill 170) was passed by the House of Representatives on March 10, 1959; by the Senate on March 11, 1959.  The bill was signed by the president of the senate and speaker of the house on March 12, 1959.  A duplicate copy of the enrolled bill was filed in the office of the secretary of state on March 12, 1959.  It was approved by the governor on March 24, 1959, and filed, with his approval, in the office of the secretary of state at 10:44 p.m. on March 24, 1959.  It contained no emergency clause.

            Chapter 304, Laws of 1959 (House Bill 125) was passed by the House of Representatives on February 14, 1959; by the Senate on March 9, 1959.  The bill was signed by the speaker of the house on March 9, 1959, and by the president of the senate on March 10, 1959.  A duplicate copy of the enrolled bill was filed in the office of the secretary of state on March 10, 1959.  It was approved by the governor on March 24, 1959, and filed, with his approval, in the office of the secretary of state at 11:00 p.m. on March 24, 1959.  Like chapter 290 it contains no emergency clause.

            By the express language of RCW 1.12.025, supra, the act last filed with the secretary of state shall control where there is a "conflict of purpose" between the amendments.

            We believe that there is an obvious "conflict of purpose" between the two amendments here in question in so far as the requirements for validating an excess school levy is concerned.  Therefore, we need  [[Orig. Op. Page 5]] only to determine which act was "last filed" in the secretary of state's office within the meaning of RCW 1.12.025, supra.

            Section 1, chapter 136, Laws of 1907 (RCW 44.20.010) reads as follows:

            "Whenever any bill shall have passed both houses, the house transmitting the enrolled bill to the governor shall also file with the secretary of state the engrossed bill, together with the history of such bill up to the time of transmission to the governor."  (Emphasis supplied.)

            The following pertinent rules are found among the Joint Rules of the Senate and House of Representatives, 36th Legislative Session 1959:

            "Rule 12. After a bill shall have passed both houses, it shall be duly enrolled in duplicate by the enrolling clerk of the house in which it originated, and it shall be examined by the enrolling committee of such house, who shall carefully compare the enrollment with the engrossed bill as passed, correcting any errors that may be discovered in the enrolled bill, after which the bill shall be signed by the presiding officer of each house, in open session, first in the house in which it originated; whereupon, the secretary of the senate, or the chief clerk of the house, shall present the original to the governor, and the duplicate (for printer's copy) to the secretary of state, taking their receipts therefor.

 

            "Rule 13. Whenever any bill shall have passed both houses, the house transmitting the enrolled bill to the governor shall also file with the secretary of state the engrossed bill together with the history of such bill up to the time of transmission to the governor."  (Emphasis supplied.)

            Our court has held that the lawmaking body is presumed to be familiar with its own prior legislation relating to the subject of the legislation.  See Benn v. Grays Harbor County, 102 Wash. 620, 173 Pac. 632 (1918); see also Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948); AGO 59-60 No. 18 [[to Dale Nordquist, State Senator on February 27, 1959]]; AGO 59-60 No. 102 [[to Prosecuting Attorney, Clallam County on February 25, 1960]].  Thus, we must presume that the legislature had knowledge of § 1, chapter 136, Laws of 1907,supra, (RCW 44.20.010) when it enacted RCW 1.12.025 in 1955, and that  [[Orig. Op. Page 6]] the filing required by the former was that filing referred to in the latter.

            Under this interpretation, chapter 290, Laws of 1959, which was enacted, enrolled, signed by the president of the senate and speaker of the house, filed and sent to the governor after chapter 304, Laws of 1959, must be held to be controlling.

            This conclusion is in accord with the views expressed by the court in State ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, 692, 131 P. (2d) 943 (1942), wherein the court said:

            ". . . We think it must be assumed that the last amendment is the last word of the legislature, and contains the final act of the legislature, and that the act as finally amended supersedes all attempted prior amendments of the original section."

            In People v. Mattes, 396 Ill. 348, 71 N.E. (2d) 690, 693 (1947), the Supreme Court of Illinois said:

            ". . . We believe the intention of the legislature can more nearly be ascertained from its last expression rather than from the order in which the bills are signed or not signed by the Governor."

            This rule would appear to be particularly reasonable and applicable in this state where an act passed by the legislature and presented to the governor may become law without his approval if he does not act thereon within the time provided in the constitution.  (Art. III, § 12, Washington State Constitution.)  Hence, once a bill has been properly passed by the legislature, (Art. II, § 22, Washington State Constitution); signed by the presiding officers of each of the two houses in open session (Art. II, § 32, Washington State Constitution), and presented to the governor for his approval, the governor may only prevent the bill from becoming law by exercising his veto power.

            We are cognizant of the fact that, as a matter of procedure, after the governor approves a bill presented to him he transmits the same to the secretary of state for filing.  This filing is not specifically required by the constitution or statutes, although the same may be considered within the general duties imposed upon the secretary of state by Art. II, § 17, Washington State Constitution.  Most certainly this second filing should not be considered the filing referred to in RCW 1.12.025, supra, because if this were true, the governor could, without exercising his veto, determine the law which would become effective merely by his system of filing.

             [[Orig. Op. Page 7]]

            We would then be concerned with executive intent rather than legislative intent.  Furthermore, any error in the order of filing by the secretary of state would, irrespective of the intent of the legislature, determine the act which would become effective.  Here we might pose the hypothetical question of which act would be controlling in this case if neither bill were approved by the governor nor filed by him with the secretary of state?

            The act last passed and filed by the legislature was chapter 290, Laws of 1959.  Accordingly, that is the act which we determine to be controlling where the same conflicts in purpose with chapter 304, Laws of 1959.

            In passing it should be noted that in adhering to our policy we have not considered the possible constitutional objections which could be raised to RCW 1.12.025 by reason of the holding of our court in the Gebhardt case, supra.

            (2) Legislative Intent of 1959 Legislature

            Apart from the foregoing, we feel the most convincing argument as to which act should control the requirements of special school excess levy elections is found in the legislative history of the two bills and the intent clearly evidenced thereby.

 

            Our court has said that the primary rule in construing a statute is to ascertain and give effect to the intention of the legislature which enacted the statute.  Public Hospital District No. 2 v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954); Graffell v. Honeysuckle, supra; Lynch v. Dept. of Labor and Industries, 19 Wn. (2) 802, 145 P. (2d) 265 (1944); AGO 59-60 No. 28 [[to Prosecuting Attorney, Benton County on April 6, 1959]]; AGO 59-60 No. 41 [[to Prosecuting Attorney, Pierce County on May 27, 1959]].

            Perhaps the clearest statement of the rule is found in 50 Am. Jur., Statutes, §§ 223, 224:

            "In the interpretation of statutes, the legislative will is the all important or controlling factor.  Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. The legislative intent has been designated the vital part, heart, soul, and essence of the law, and the guiding star in the interpretation thereof.  Accordingly, the primary rule of construction of statutes is to ascertain and declare the intention of the legislature, and carry such intention into effect to the fullest degree.  A construction adopted should not be such as to nullify, destroy, or defeat the intention of the legislature.

             [[Orig. Op. Page 8]]

            "In the interpretation of a statute, the intention of the legislature is gathered from the provisions enacted by the application of sound and well settled canons of construction.  However, every technical rule as to the construction of a statute is subservient and must yield to the expression of the paramount will of the legislature, since all rules for the interpretation of statutes of doubtful meaning have for their sole object the discovery of the legislative intent, and are valuable only in so far as, in their application, they enable the courts the better to ascertain that intent.  It has even been declared that the intention of the legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding."  (Emphasis supplied.)

            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 lawmakers is to be deduced, if possible, from what it said.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1957); Driscoll v. Bremerton, 48 Wn. (2d) 95, 291 P. (2d) 642 (1955).

            Section 1, chapter 290, Laws of 1959, reads as follows:

            "The limitations imposed by RCW 84.52.050 through 84.52.056, shall not prevent the levy of additional taxes, not in excess of five mills a year and without anticipation of delinquencies in payment of taxes, in an amount equal to the interest and principal payable in the next succeeding year on general obligation bonds, outstanding on December 6, 1934, issued by or through the agency of the state, or any county, city, town, or school district, or the levy of additional taxes to pay interest on or toward the reduction, at the rates provided by statute, of the principal of county, city, town, or school district warrants outstanding on December 6, 1932; but this millage limitation with respect to general obligation bonds shall not apply to any taxing district in which a larger levy is necessary in order to prevent the impairment of the obligation of contracts.  Any county, school district, metropolitan park district, park and recreation district in Class AA counties, sewer district, water district, public  [[Orig. Op. Page 9]] hospital district, rural county library district, intercounty rural library district, fire protection district, city or town may levy taxes at a rate in excess of the rate specified in RCW 84.52.050 through 84.52.056, when authorized so to do by the electors of such county, school district, metropolitan park district, park and recreation district in Class AA counties, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, city or town by a three fifths majority of those voting on the proposition at a special election, to be held in the year in which the levy is made, and not oftener than twice in such year, in the manner provided by law for holding general elections, [[;]] at such time as may be fixed by the body authorized to call the same, which special election may be called by the board of county commissioners, board of school directors, or council, board of commissioners, or other governing body of any metropolitan park district, park and recreation district in Class AA counties, sewer district, water district, public hospital district, rural county library district,  intercounty rural library district, fire protection district, city or town, by giving notice thereof by publication in the manner provided by law for giving notices of general elections, at which special election the proposition of authorizing such excess levy shall be submitted in such form as to enable the voters favoring the proposition to vote 'Yes,' and those opposed thereto to vote 'No':  Provided, That the total number of persons voting at such special election must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election: Provided further, That the total number of persons voting on an excess levy for school district purposes or for cities and towns at any such special election of any school district or of any city or town must constitute not less than forty percent of the voters in said taxing district or in any city or town, as the case may be who voted at the last preceding general election in such district."  (Emphasis supplied.)

            Section 8, chapter 304, Laws of 1959, reads in pertinent part as follows:

            ". . .Provided, That the total number of persons voting on an excess levy for school district purposes  [[Orig. Op. Page 10]] at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:  Provided further, That the total number of persons voting on an excess levy for school district purposes at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district."  (Emphasis supplied.)

            From a reading of the above acts and by comparing the provisos thereof we find:

            Section 1, chapter 290, supra, after listing various taxing districts, logically and reasonably provides the requirements for validating a special excess levy by all districts:

            (1) One standard is prescribed for taxing districts generally, that is, forty per cent of the voters who voted at the last preceding general state election must vote at the special election.

            (2) A special standard is provided for school districts, cities and towns -they must only obtain a vote of forty per cent of those who voted at the last preceding general election.  [It should be noted that the amendment of this proviso in 1959 placed cities and towns for the first time in this special class previously only granted school districts.]

            On the other hand, § 8, chapter 304, supra, after listing the various taxing districts (substantially the same as § 1, chapter 290, except for eighth and ninth class counties) provides the requirements only for validating school district elections and then, for the first time, sets up what appears to be a double standard.  School districts must obtain a vote of forty per cent of those voters who voted at the last preceding general state election (proviso 1) and forty percent of those who voted at the last general election in the district (proviso 2).  Most significant is the fact thatNO STANDARD IS PROVIDED FOR THE ELECTIONS OF THE OTHER TAXING DISTRICTS MENTIONED.

            Under RCW 1.12.025, supra, we must attempt to harmonize and give effect to the provisions of the foregoing statutes except where there is a conflict of purpose.  This conflict we have previously discussed.  However, there can be no question that the acts are subject to construction.  They are not plain, clear and unambiguous.  Therefore, the following rule found in the case of Lynch v. Dept. of Labor and  [[Orig. Op. Page 11]] Industries, 19 Wn. (2d) 802, 809, supra, is pertinent:

            "It is a rule of statutory construction that resort may be had to the history of the passage of a law under consideration.  State ex rel. Griffin V. Superior Court, 70 Wash. 545, 127 Pac. 120; State ex rel. Northwest Airlines, Inc., v. Hoover, 200 Wash. 277, 93 P. (2d) 346; Shelton Hotel Co. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478; Ayers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348; Crawford, Statutory Construction 383, § 216; 2 Sutherland, Statutory Construction (3d ed.) chapter 50, p. 481.

            "In fact, from the record before this court, the 'legislative intent' becomes clearly evident from the history of the passage of the law under consideration, and to disregard that history would be to ignore the above expressed principle that legislative intent is the paramount factor in construing a law."  (Emphasis supplied.)

            See also, Proctor & Gamble Co. v. King County, 9 Wn. (2d) 655, 115 P. (2d) 692 (1941); and, for two of the more recent cases wherein the court examined the legislative history of an act in order to ascertain and thereby give effect to legislative intent, see Nostrand v. Balmer, 153 Wash. Dec. 431 [[53 Wn. 2d 460]], 335 P. (2d) 10 (1959);  State ex rel. Blume v. Yelle, 52 Wn. (2d) 158, 324 P. (2d) 247 (1958).

            We will now examine the legislative history of (a) chapter 290 (Substitute Senate Bill 170), and (b) chapter 304 (House Bill 125).

            (a) Chapter 290 is a short five section act entitled "AN ACT Relating to bond elections."  For convenience in reading we will again set out the pertinent portion of § 1 thereof:

            ". . .Provided, That the total number of persons voting at such special election must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:Provided further, That the total number of persons voting on an excess levy for school district purposes or for cities and towns at any such special election of any school district or of any city or town must constitute not less than forty percent of the voters in said taxing district or in any city or town, as the case may be who voted at the last preceding general election in such district."  (Emphasis supplied.)

             [[Orig. Op. Page 12]]

            The underlined portion was added to § 1, chapter 32, Laws of 1957, by the 1959 amendment and is how the provisos appear in the engrossed bill on file in the office of the secretary of state.  Underlining, to indicate amendments, is required by Rule 18, Joint Rules of the Senate and House of Representatives, 36th Legislative Session, which reads as follows:

            "Bills introduced in either house intended to amend existing statutes shall have the words which are amendatory to such existing statutes underlined.  Any matter to be deleted from the existing statutes shall be indicated by setting such matter forth in full enclosed by double parentheses, and no bill shall be printed or acted upon until the provisions of this rule shall have been complied with."

            See also Senate Rule 60; House Rule 85, which require the same procedure to be followed.

            Unquestionably, any legislator examining chapter 290 in bill form would have had his attention clearly and pointedly directed to the above provisions by the amendment which placed cities and towns in the same class as school districts in so far as vote requirements for special excess levies are concerned.

            (b) Chapter 304 is a long act consisting of ten sections and is entitled "AN ACT Relating to county recreation districts."  The obvious purpose of this act was to extend "authorization for county recreation to eighth and ninth class counties."  See House Journal 1959, pp. 237, 314, 351, 400, 1326.  The provisions thereof, here in question, are found in § 8 which was added to House Bill 125 by a floor amendment.  See House Journal 1959, p. 352.  Except as noted hereinafter, the legislature complied with its rules cited above and indicated language added to existing law (§ 1, chapter 32, Laws of 1957) by underlining.  The only departure from the rule is found in proviso (1) which has created the serious problem you have submitted.  Section 8, in pertinent part, reads as follows:

            ". . .Provided, That the total number of persons voting on an excess levy for school district purposes at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:  Provided further, That the total number of persons voting on an excess  [[Orig. Op. Page 13]] levy for school district purposes at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district."  (Emphasis supplied.)

            The language underlined above was, in fact, added to § 1, chapter 32, Laws of 1957, which it was amending; however, it was not underlined when the amendment was offered; it is not underlined in the engrossed bill; and, it is not italicized in the House Journal where the amendment is set forth.  (See House Journal 1959, p. 352.)

            We believe it is well settled that members of the legislature, as public officers, are presumed to act in good faith and with proper motives when enacting laws for the people they represent.  Thus, the language underlined above which was added to § 1, chapter 32, Laws of 1957, (changing the voting requirements for school district excess levy elections without indicating the addition as an amendment) can, and therefore, we feel must be attributed to a mere clerical error of the typist or drafter.  In view of its busy session, it is understandable why no member of the legislature detected the inadvertence.

            Under the circumstance, we feel the following rule found in 2 Sutherland, Statutory Construction, § 4926, p. 462, should be applied:

            "A majority of the cases permit the elimination or disregarding of words in a statute in order to carry out the legislative intent.

            "As in all other cases, words may be eliminated only when such action is consistent with the legislative intent.  Courts permit the elimination of words for one or more of the following reasons: where the word is found in the statute due to the inadvertence of the legislature or reviser, or where it is necessary to give the act meaning, effect or intelligibility, or where it is apparent from the context of the act that the word is surplusage, or where the maintenance of the word would lead to an absurdity or irrationality, or where the use of the word was a mere inaccuracy, or clearly apparent mishap, or was obviously erroneously inserted, or where the use of the word is the result of a typographical or clerical error, or where it is necessary to avoid inconsistencies and to make the provisions of the act harmonize, or where the words of the statute fail to have any useful purpose or are entirely foreign to the subject matter of the enactment, or  [[Orig. Op. Page 14]] where it is apparent from the caption of the act or body of the bill that the word is surplusage."  (Emphasis supplied.)

            See also, 2 Sutherland, supra, § 4705.

            In Pressman v. State Tax Commission, Md., 102 A. (2d) 821, 828 (1954), the Maryland court said:

            "Of course, it must be certain that the legislature could not possibly have intended the words to be in the statute, and that the rejection of them serve merely as a correction of careless language and actually gives the true intention of the Legislature.  The cardinal rule of statutory construction is that the court should ascertain from the entire statute the intention to be accomplished by the enactment.  When that intention is clear it should be carried out, even though it may be necessary to strike out or insert certain words."  (Emphasis supplied.)

            See also, Basham v. Southeastern Motor Truck Lines, 184 Tenn. 532, 201 S.W. (2d) 678 (1947); Asher v. Stacy, 299 Ky. 476, 185 S.W. (2d) 957 (1945).

            In State v. Atterbury, Mo., 270 S.W. (2d) 399, 404 (1954), we find the following statement which we feel is unquestionably correct:

            ". . . in construing a statute, significance and effect should, if possible, be attributed to every word, every phrase, sentence and part thereof, and words or phrases may be stricken out only in extreme cases, . . ." (Emphasis supplied.)

            Our court has, in effect, indicated it would recognize substantially the same rule as quoted above from the Atterbury case, supra, under certain circumstances, where the statutes in question are ambiguous.  In McKay v. Dept. of Labor and Industries, 180 Wash. 191, 194, 39 P. (2d) 997 (1934), the court found the act before it unambiguous and, therefore, stated:

            "The plain and unambiguous language of the statute provides the compensation to respondent.  In construing a statute, it is safer always not to add to, or subtract from, the  [[Orig. Op. Page 15]] language of the statute unless imperatively required to make it a rational statute.  This is not the case here."  (Emphasis supplied.)

            Suffice it to say, we feel this is an extreme case and one in which it would be imperative for the court to strike or hold ineffective the language inadvertently added to the first proviso of § 8, chapter 304, Laws of 1959 (House Bill 125).  To reach any other conclusion would be to defeat or thwart, rather than give effect to, the evident intent of the legislature which the court has said many times is the "paramount factor in construing a law."  Lynch v. Dept. of Labor and Industries, supra.

            We should like to state that, in examining the legislative history of the two acts, we do not believe we have violated either the letter or spirit of the "enrolled bill" rule.  This rule was firmly established by the court as the law in this state in the case of Roehl v. Public Utility Dist. No. 1, 43 Wn. (2d) 214, 261 P. (2d) 92 (1953).  In that case the court held it would not go behind an enrolled bill and examine its legislative history to determine whether it was enacted in violation of any constitutional provision.  However, the court noted:

            "'Finding an enrolled bill in the office of the secretary of state, unless that bill carries its death warrant in its hand, the courts will make no investigation of the antecedent history connected with its passage, except as such an investigation may be necessary in case of ambiguity in the bill for the purpose of determining the legislative intent.'"  (Emphasis supplied.)

            As we have demonstrated above, the acts here in question are ambiguous (or conflict in purpose), and reference to the legislative history is necessary for "the purpose of determining the legislative intent."

            We made no attempt herein to argue that, by the house amendment of § 8 to House Bill 125 (chapter 304), the scope of the bill was enlarged in violation of Art. II, § 38, of the Washington State Constitution.  This argument, of course, would be barred by the "enrolled bill" rule.

            (3) Constitutional Considerations

            It is, of course, well established that every act passed by the legislature is presumed to be constitutional.  State ex rel. O'Connell v. Meyers, 51 Wn. (2d) 454, 319 P. (2d) 828 (1957); Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949).  Since the constitutionality of any act is strictly a judicial question, the attorney general announced as early as 1891 that this office would consider all laws as being constitutional  [[Orig. Op. Page 16]] until declared otherwise by the supreme court of this state.  See, AGO 1891-92:93 [[1891-92 OAG 93]]; AGO written to the Honorable Levy Johnson, Prosecuting Attorney, Thurston County, dated April 17, 1945; AGO 57-58 No. 92 [[to Prosecuting Attorney, Grant County on July 5, 1957]].  Hence, we, like the court, when called upon to construe a statute which is subject to two constructions, have adopted the rule recently stated again by our court in the case ofHammack v. Monroe Street Lumber Company, 154 Wash. Dec. 217 [[54 Wn. 2d 224]], 225, 339 P. (2d) 684 (1959):

            "'. . . In such cases the rule is that, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted. . . .'"  (Emphasis supplied.)

            See also, Yelle v. Bishop, 155 Wash. Dec. 285 [[55 Wn. 2d 286]], 347 P. (2d) 1081 (1960); Gruen v. Tax Commission, supra; AGO 33-34 No. 3038; AGO written to the Honorable Levy Johnson, supra; AGO 51-53 No. 500 [[to A. B. Langlie, Governor on March 23, 1953]]. written to the Honorable Levy Johnson, supra; AGO 51-53 No. 500.

            This rule must be applied to the acts here being considered.  And, when so applied, there is little doubt but that our conclusion holding that § 1, chapter 290, Laws of 1959, controls the voting requirements for special school excess levy elections must be accepted.  This is true because if the provisos of § 8, chapter 304, Laws of 1959, were determined to be effective, then there would be at least grave doubt as to the constitutionality thereof.  Art. II, § 19, of the state constitution provides as follows:

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

            Unquestionably, this section contains two mandates to the legislature: (1) That no bill shall contain more than one general subject; and (2) that such single subject shall be expressed in the title.  Wash. Toll Br. Etc. v. State, 49 Wn. (2d) 520, 304 P. (2d) 676 (1956); Power, Inc. v. Huntley, 39 Wn. (2d) 191, 235 P. (2d) 173 (1951).

            The purpose of this constitutional provision has been stated by our court many times to be threefold: (1) To protect and enlighten the members of the legislature against provisions in bills of which the titles give no intimation; (2) to apprise the people, through such publication of the legislative proceedings as is usually made, concerning the subjects of legislation that are being considered; and (3) to prevent hodgepodge or logrolling legislation.  State ex rel. Toll B. Etc. v. Yelle, 32 Wn. (2d) 13, 200 P. (2d) 467 (1948); Rourke v. Dept. Labor & Ind. 41 Wn. (2d) 310, 249 P. (2d) 236 (1952); see also Power, Inc. v. Huntley, supra.

             [[Orig. Op. Page 17]]

            InState ex rel. Toll B. Etc. v. Yelle, supra, the court said at page 24:

            "In State ex rel. Potter v. King County, 49 Wash. 619, 96 Pac. 156, this principle is forcefully expressed as follows:

            "'The constitutional provision, § 19, art. 2, which provides that no bill shall embrace more than one subject and that shall be expressed in the title, was incorporated in the constitution for a beneficial purpose, viz., for the protection and enlightenment of the members of the legislature and for notice to citizens at large of proposed legislation which they might desire by proper methods to encourage or defeat; and when laws are enacted or amended in substantial violation of this guaranty, the taint of at least suspicion of unfairness is upon them, and courts should not hesitate to declare them void.'"  (Emphasis supplied.)

            Thus, where the legislature combines in a single bill two unrelated subjects not germane to the single subject expressed in the title of the act, the portion thereof not properly included in or germane to the single subject, as set forth in the title, must be held void.

            The title of chapter 304, Laws of 1959, reads as follows:

            "AN ACT Relating to county recreation districts; amending sections 1, 2, 3, 7, 13, 14, 20 and 33, chapter 58, Laws of 1957, and RCW 36.69.010, 36.69.020, 36.69.030, 36.69.070, 36.69.130, 36.69.140, 36.69.190 and 36.69.900; amending section 3, chapter 23, Laws of 1951 second extraordinary session, as last amended by section 1, chapter 32, Laws of 1957 and RCW 84.52.052; and repealing section 15, chapter 58, Laws of 1957."

            The title of an act must give such notice as shall reasonably lead to inquiry into the body of the act or indicate, to an inquiring mind, the scope and purpose of the law.  State ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 232 P. (2d) 833 (1951).  In State ex rel. Toll B. Etc. v. Yelle, supra, (32 Wn. (3d) at page 25) our court clearly stated the rule regarding the title of an act in the following language:

            ". . . the title of an act need not be an index to the contents of the legislation that follows,  [[Orig. Op. Page 18]] nor need it express in detail every phase of the subject which is dealt with by the enactment, but that it is sufficient if the title gives such notice as should reasonably lead to an inquiry into the body of the act itself, or indicates, to an inquiring mind, the scope and purpose of the law. . . ."  (Emphasis supplied.)

            The notice as to the scope and purpose of chapter 304, supra, conveyed by its title to an inquiring mind, is that it relates to "county recreation districts."  Since the provisos of § 8 thereof, as written, would increase for the first time by amendment the requirements to validate a special school excess levy election, there is a very serious question of whether this subject is germane to the subject expressed in the title.

            Accordingly, because of the grave doubt as to the constitutionality of that portion of chapter 304 here in question, we must conclude chapter 290, Laws of 1959, is to be applied in determining the voting requirements of school elections included within the provisions thereof.  This constitutional argument certainly supports our conclusion stated herein before that the unindicated amendment in § 8 (the portion not underlined) was obviously due to a clerical error of the typist or drafter and should, therefore, be stricken therefrom and/or held ineffective.

            Thus, it is our opinion that a school district must satisfy the following requirement in order to validate a special excess levy: (1) that at a special school district election, sixty per cent of the persons voting on the proposition authorize the imposition of the excess levy; and (2) that the total number of persons voting on the proposition shall constitute not less than forty per cent of the voters in the district who voted at the last preceding general election.

            Question (2):

            We restate your second question as follows:

            Is an election at which the county board of education and school districts' directors are elected, a general election within the meaning and intent of § 1, chapter 290, Laws of 1959, and the 17th Amendment to the Washington State Constitution?

            In an opinion written to the Honorable Ole H. Olson, State Representative, 16th District, dated February 6, 1953 (AGO 51-53 No. 479, a copy of which is enclosed for your information) we concluded: (1) a general  [[Orig. Op. Page 19]] election is an election required to be held on a fixed date recurring at regular intervals; (2) The term "general election" as used in the 17th Amendment to the state constitution is broad enough to include a school district election if the statute governing the election requires that it be held on a fixed date at regular intervals.

            Later, in a letter to the Honorable Richard Ruoff, State Representative, 32nd District, dated February 2, 1959, this office said:

            "A 'general election' has been defined by our supreme court as

            "'. . . an election held at stated intervals to fill the terms of public officers regularly expiring in virtue of the constitution or some statute, and at which every one having the qualifications of an elector, as defined in the constitution and general election laws, has a right to participate. . . .'  State ex rel. Griffin v. Superior Court, 70 Wash. 545, 547, 127 Pac. 120.

            "In 18 Am.Jur 181 the term 'general election' is more broadly defined as an election

            "'. . . which recurs at stated intervals as fixed by law; it is one which occurs at stated intervals without any superinducing cause other than the efflux of time. . . .'"  (Emphasis supplied.)

            See also, letter written to the Honorable R. R. Greive, State Senator, 34th District, dated February 2, 1959.  Copies of these letters are enclosed for your information.

            School directors and members of the county board of education are public officers regularly elected at general school district elections required by law to be held on the second Tuesday of March in the even numbered years.  See RCW 28.58.080; RCW 28.20.010; RCW 29.13.020; RCW 29.13.030.

            Accordingly, it is our opinion that a general school district election held in March of any even numbered year is a general election within the purview of § 1, chapter 290, Laws of 1959, and the 17th Amendment to the Washington State Constitution.  Therefore, when such school district election is, in fact, the last general election in the district preceding a special school excess levy election, the validating vote is to be measured by that election.  See Seattle School District v. Odell, 154 Wash. Dec. 874 [[54 Wn.2d 728]], 344 P. (2d) 715 (1959).

             [[Orig. Op. Page 20]]

            In passing, it should be mentioned that nothing we have stated herein has any application to school district general obligation bond elections.  The forty per cent requirement in such elections is to be based on the preceding general state election.  See AGO 59-60 No. 85 [[to Victor Meyers, Secretary of State on November 18, 1959]].

            CONCLUSION:

            Because of the length of this opinion we deem it advisable to summarize our conclusions as follows:

            (1) A school district is authorized to impose a special school excess tax levy where the following requirements are satisfied: (a) that at a special school district election, sixty per cent of the persons voting on the proposition authorize the imposition of the excess levy; (b) that the total number of persons voting on the proposition shall constitute not less than forty per cent of the voters in the district who voted at the last precedinggeneral election.  Chapter 290, Laws of 1959 (RCW 84.52.050).

            (2) The regular March school election is a "general election" within the purview of § 1, chapter 290, Laws of 1959.  Therefore, where such election is, in fact, the last preceding general election in the district, the forty per cent vote requirement is to be based on that election.  However, where the last preceding general election in the district is the general state election, the vote, of course, must be based on that election.  See Seattle School Dist. No. 1 v. Odell, supra.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General

Content Bottom Graphic
AGO Logo