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Bob Ferguson

AGO 1957 No. 12 -
Attorney General John J. O'Connell


Enactment by legislature of statute relating to civil rights of its citizens in publicly assisted housing is constitutional and in conformity with federal constitution and statutes.

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                                                                 February 6, 1957

Honorable Fred H. Dore
Judiciary Committee
House of Representatives
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 12

Dear Sir:

            This is in answer to your request for an opinion with regard to the constitutionality of provisions of House Bill No. 25, relating to civil rights in publicly-assisted housing.  Your specific question is as follows:

            Are the provisions of Sec. 15 of H.B. 25 constitutional or can they be considered an unlawful exercise of legislative authority by the state in placing conditions on federally assisted public housing?

            Our answer is as follows:

             [[Orig. Op. Page 2]]

            The provisions of sec. 15 of H.B. 25 are constitutional and in conformity with the federal constitution and statutes.


            The provisions of H.B. 25 with which you are concerned add a new section to chapter 49.60 RCW, which is to be known as the "Law Against Discrimination."  Under the provisions of section 15, it has been made an unfair practice for there to be any discrimination whatsoever, in publicly assisted housing, against any person because of his race, creed, color or national origin.

            Our theory of government in the United States is that the people, in full possession of "inherent, inalienable rights" have formed the government in order to protect their personal rights.  Thus have placed provisions in the constitutions of the federal government and of each of the states prohibiting any form of procedure which would arbitrarily single out any individuals or classes and permit them to be dealt with in a manner unreasonably different from that in which others similarly situated are dealt with.  11 C.J.S. § 976.  The matter of protection of these personal rights is of concern to the federal government as well as to each state government.  However, your question arises because of the possible conflict of a state legislative enactment with acts of Congress in view of the nature of the problem involved, i.e., publicly-assisted housing.

            Under our system of government, certain defined powers have been delegated to the national government and equally certain powers have been reserved to state or local control.  The supreme court of the United States, at an early date, laid down a broad formula which from that time on has been the general principle governing the possibility of state exercise of legislative power.  In the case of Houston v. Moore, 5 Wheat. (U.S.) 1, 5 L. Ed. 19, the court held that the states may exercise concurrent or independent power in all cases except three:

            (1) Where the power is lodged exclusively in the federal constitution;

            (2) where it is given to the United States and prohibited to the states; and

            (3) where, from the nature and subjects of the power, it must be necessarily exercised by the national government.

             [[Orig. Op. Page 3]]

            Under the provisions of the federal constitution, the constitution itself and the laws passed pursuant thereto are the supreme law of the land.  If a law passed by a state in the exercise of its acknowledged powers comes into conflict with an act of congress, the state law must yield.  Where Congress has the right of exercising exclusive jurisdiction under the federal constitution and uses its power to cover the field (as in the field of interstate commerce) state legislation ceases to have any effect, for an act of Congress supersedes all existing state legislation.  However, as act of Congress may occupy only a limited portion of the field of regulation of a particular subject matter leaving unimpaired the right of the several states to enact regulations covering other aspects of the subject, or merely to supplement the federal legislation in respect to local conditions, as, for example, in the field of insolvency.  11 Am. Jur. 871, § 175 et seq.

            A state law is superseded by a federal regulation only to the extent that the two may be inconsistent.  When the question is whether the federal act overrides a state law, a state law enacted under any of the reserved powers‑-especially if under the police power‑-is not to be set aside as inconsistent with an act of Congress unless there is an actual repugnancy or unless Congress has manifested a purpose to exercise its paramount authority over the subject.

            In the present instance, the only provision in the constitution of the United States which, in our view, might grant the federal government exclusive jurisdiction, empowers Congress under Article 1, § 8, Clause 17:

            "To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, be cession of particular states, and the acceptance of congress, become the seat of the government of the United States, andto exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings; * * *"  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            However, that section clearly does not apply to the subject of public housing with which you are presently concerned.  In addition, it has been interpreted to mean that a state and the United States could agree with respect to whether the federal government was to exercise mutual or exclusive jurisdiction over land so acquired by the United States within the state.  Silas Mason co. v. Tax Commission of State of Washington, 58 S.Ct. 233, 302 U.S. 186, 82 L.Ed. 187.

            In the present instance, there can be little doubt but that the provisions of H.B. 25, to which you refer, are constitutional and within the delegated authority of each state to enact legislation on the subject, in view of the act of Congress relating to national housing found in U.S.C.A. Title 42, § 1547, and providing as follows:

            "Notwithstanding any other provision of law, the acquisition by the Administrator of any real property pursuant to subchapters 11-V11 of this chapter shall not deprive any State or political subdivision thereof, including any Territory or possession of the United States, of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the State or local law of the inhabitants on such property.  As used in this section the term 'State' shall include the District of Columbia.  * * *"

            In addition, Congress enacted the following provision found in U.S.C.A. Title 42, § 1413 (b) relating to low-rent housing:

            "The acquisition by the Administration of any real property pursuant to this chapter shall not deprive any State or political subdivision thereof of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the State or local law of the inhabitants on such property; and, insofar as any such jurisdiction may have been taken away or any such rights impaired by reason of the acquisition of any property transferred to the Administration pursuant to section 1404 (d) of this title, such jurisdiction and such rights are fully restored."

             [[Orig. Op. Page 5]]

            Clearly, under these acts, each state is allowed to exercise control over the protection of the civil rights of its citizens in matters relating to federally assisted housing.  In conclusion, therefore, inasmuch as the provisions of H.B. 25 do not come within the three exceptions to the rule that the state may exercise concurrent or independent power with Congress, and inasmuch as Congress has seen fit to enact laws specifically reserving to each state its civil and criminal jurisdiction and control of civil rights in national housing of all descriptions, there can be little doubt but that the proposed legislation is constitutional.  Consequently the state legislature would be acting within its authority in enacting such legislation.

            We trust the foregoing will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General