AGO 1969 No. 23 - Dec 15 1969
CONSTITUTIONAL AMENDMENT - LEGISLATURE - WITHDRAWAL OF PROPOSED CONSTITUTIONAL AMENDMENT - SUBMISSION OF TWO AMENDMENTS TO SAME PART OF CONSTITUTION.
(1) Under the provision of Article XXIII, § 1 (Amendment 37) of the Washington Constitution, once the legislature has considered and agreed to a proposed constitutional amendment by the requisite two-thirds majority of the members of both houses, and has filed the proposed amendment with the secretary of state for the purpose of submission to the voters, the legislature has exhausted its power with respect to the particular constitutional amendment; therefore, the 41st legislature, at a special session held prior to the time of the election thereon, may not withdraw and amend the provisions of the proposed constitutional amendment which it has previously agreed to and filed with the secretary of state.
(2) The legislature may, however, propose a second and different amendment to the same portion of the constitution as is the subject of the previously proposed amendment to the end that both amendments would be voted upon by the people at the same general election.
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December 15, 1969
Honorable Martin J. Durkan
State Senator, 47th District
Olympic National Building
Cite as: AGO 1969 No. 23
By letter previously acknowledged you have requested the opinion of this office on two questions pertaining to the submission of constitutional amendments to the voters. We paraphrase your questions as follows:
(1) May the 41st legislature, at a special session held prior to the time of the election thereon, withdraw and amend the provisions of a proposed constitutional amendment which it has previously agreed to and has filed with the secretary of state for the purpose of submission to the voters in accordance with Article XXIII, § 1 (Amendment 37) of the state [[Orig. Op. Page 2]] constitution?
(2) If question (1) is answered in the negative, may the 41st legislature instead propose a second and different amendment to the same portion of the constitution as is the subject of the previously proposed amendment to the end that both amendments would be voted upon by the people at the same general election?
We answer question (1) in the negative, and question (2) in the affirmative, for the reasons set forth in our analysis.
The procedure by which our state constitution may be amended is set forth in Article XXIII, § 1 (Amendment 37) thereof, as follows:
"Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval, at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor: Provided, That if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such amendments separately. The legislature shall also cause notice of the amendments that are to be submitted to the people to be published at least four times during the four weeks next preceding the election in every legal newspaper in the state: Provided, That failure of any newspaper to publish this notice shall not be interpreted as affecting the outcome of the election."
Notably, the form in which a proposed constitutional amendment [[Orig. Op. Page 3]] is to be considered by the legislature is not spelled out in the constitution; however, the legislature, exercising its authority under Article II, § 9 to make rules governing its own procedure, has provided as follows:
". . . Proposed amendments to the state constitution shall be in the form of joint resolutions. . . . [such] joint resolutions, . . . up to and including the signing thereof by the presiding officer of each house, shall be subject to the rules governing the course of bills."1/
Following the approval of a proposed constitutional amendment by the legislature, the next step in the process is for the proposal to be transmitted to the secretary of state, as chief elections officer for the state, in order that he may publish the requisite notices and otherwise process it for placement on the next general election ballot.2/
Your first question assumes that, factually speaking, all of the foregoing procedures have been followed meaning that the proposed constitutional amendment you have in mind has been approved by a two-thirds majority of the members of both houses of the legislature and now rests in the custody of the secretary of state pending its submission to the voters at the next (November, 1970) general election. The issue raised by your inquiry is whether, under Article XXIII, § 1 (Amendment 37),supra, the legislature has the authority to withdraw and amend the terms of this proposed amendment prior to [[Orig. Op. Page 4]] the time of the election thereon.
In resolving this question, we must, of course, refer to and be guided by certain well-established principles of constitutional construction. The ultimate goal of our effort must be to ascertain and give effect to the intent of the framers of our constitution and the people who adopted it. Boeing Aircraft Co. v. R. F. C., 25 Wn.2d 652, 659, 171 P.2d 838 (1946). In seeking this intent, we must keep in mind the purpose or object sought to be accomplished and the evils, if any, sought to be prevented. State ex rel. Linn v. Sup. Ct., 20 Wn.2d 138, 143, 146 P.2d 543 (1944).
InState ex rel. State Capitol Comm. v. Lister, 91 Wash. 9, 14, 156 Pac. 858 (1916), our court stated the following pertinent proposition:
"Constitutions being the result of the popular will, the words used therein are to be understood ordinarily in the sense that such words convey to the popular mind. The meaning to be given to the language used in such instruments is that meaning which a man of ordinary prudence and average intelligence and information would give. Generally speaking, the meaning given to words by the learned and technical is not to be given to words appearing in a constitution. . . ."
Just as in the case of a statute, it is settled that a provision of the constitution which is plain, clear and unambiguous is not open to construction. State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958); State ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 145, 247 P.2d 787 (1952).
Another guideline to be noted is spelled out in the constitution itself. Article I, § 29, provides that:
"The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise."
Finally and most importantly in framing our opinion on the question you have submitted we must bear in mind the [[Orig. Op. Page 5]] nature of the particular legislative power under consideration. It is well established that the authority of a legislature to propose amendments to a state constitution such as that vested in our legislature by Article XXIII, § 1 (Amendment 37), supra is not an ordinary law-making power. Instead, it is a special and extraordinary powergranted to the legislature by the people through their adoption of the basic constitution. As such, this special power of the legislature must be strictly construed. See, 16 Am.Jur. 2d, Constitutional Law, §§ 26, 30 (pp. 197-198, 201); and 16 C.J.S., Constitutional Law, § 9 (pp. 48-49).
This distinction and resulting difference in analytical approach was aptly described in AGO 63-64 No. 33, copy enclosed, as follows:
"Concerning legislative power of the legislature, the rule is that the state constitution is not a grant, but a restriction on the law-making power, and the power of the legislature to enact laws is unrestrained except where it is expressly or inferentially prohibited by the state or federal constitution. Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960); State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958). However, the power to initiate changes in the constitution is not considered a legislative power, but rather a special power delegated to the legislature by the constitution, and as such, the extent of the power is strictly construed. 11 Am. Jur., Constitutional Law, § 28; 16 C.J.S., Constitutional Law, § 9."
More recently, in a letter dated May 21, 1968, to the Legislative Council, we expressed ourselves on this matter as follows:
"Article XXIII, § 1 (Amendment 37), supra, contains such a special grant of power to draft constitutional amendments for submission to the people of our state. However, because this is a granted, rather than an inherent power, every requirement of the grant must be strictly observed.
[[Orig. Op. Page 6]]
"This means, as we see it, that any amendments to the existing constitution which are proposed by the 1969 legislature must be proposed and processed in accordance with the present provisions of Article XXIII, § 1 (Amendment 37). . . ."
This proposition, together with the guideline to be derived from Article I, § 29,supra (i.e., that the provisions of the constitution must be regarded as mandatory "unless by express words they are declared to be otherwise"), leads us, in turn, to the rules which were expressed by our court in State ex rel. Linn v. Superior Court, supra, quoting with approval from its earlier decision in State ex rel. Wiesenthal v. Denny, 4 Wash. 135, 146, 29 Pac. 991 (1892), as follows:
"'"Wherever the language contains a grant of power it was intended as a mandate. Wherever the language gives a direction as to the manner of exercising a power, it was intended that the power should be exercised in the manner directed, and in no other manner." Varney v. Justice, 86 Ky. 596 (6 S.W. Rep. 457).
"'"When the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or to extend the penalty to other cases." Cooley, Const. Lim. (5th ed.), p. 78.'"
Thus, in short, the terms in which the power in question was granted must be viewed as expressly circumscribing the manner of its exercise. With this precept (together with the others above noted) in mind, we now return to the critical language of Article XXIII, § 1 (Amendment 37) of our constitution,supra. Under this provision, the legislature has been granted the power to perform only three acts in the process of proposing amendments to the constitution. First, the amendment ". . . may be proposed in either branch of the legislature . . ." Secondly, the amendment must ". . . be agreed to by two-thirds of the members elected to each of the [[Orig. Op. Page 7]] two houses . . ." And thirdly, the amendment must ". . . be entered on their journals, with the ayes and noes thereon, . . ."
The constitution's delineation of the legislature's power with respect to the performance of these three acts is plain, clear and unambiguous. Most certainly, noexpress power has been granted by the people to the legislature, following their performance of these three acts, to then withdraw and amend a proposed constitutional amendment prior to the time of the election thereon. Nor can we find any basis for concluding that such a power to withdraw and amend has been granted by implication.
Accordingly, it is our opinion giving effect to the rules of construction by which we must be guided that once the legislature has performed the three acts specified in Article XXIII, § 1 (Amendment 37),supra, it must be said to have exhausted its power with respect to the particular constitutional amendment as to which these acts have been performed. The proposal, in its then existing form, must at this point in the proceedings be submitted to the voters for their approval or disapproval, at the next general election. Therefore, our direct answer to your first question (as paraphrased at the outset) must be in the negative.
This answer, we may note, is consistent with an opinion which was issued by the attorney general of California in 1955. See, 26 Ops. Cal. Atty. Gen. (copy enclosed). Significantly, the amendatory section of the California constitution is quite similar to our Article XXIII, § 1 (Amendment 37); in addition, the California constitution contains a provision which is virtually identical to our Article I, § 29,supra.3/ This latter provision was particularly relied upon by the California attorney general in reaching the same conclusion as we have reached in responding to a question which was identical to the one you have submitted to us for our consideration.
[[Orig. Op. Page 8]]
We should also note, for purposes of reference, that our research has disclosed some three decisions of the courts of other jurisdictions which express a contrary view. See,Opinion of the Justices, 275 Ala. 372, 155 S.2d 329 (1963);In re Senate Concurrent Resolution No. 10, 137 Colo. 491, 328 P.2d 103 (1958); andClements v. Powell, 155 Ga. 278, 116 S.E. 624 (1923). However, we do not regard any of the opinions expressed in these cases to be persuasive.
In the first place, although the amendatory sections of the Alabama, Colorado and Georgia constitutions do not differ markedly from those of Washington and California, the constitutions of none of those three states contain a provision which is comparable to our Article I, § 29, or California's Article I, § 22.4/ Secondly, in none of the three cases from these states, cited above, did the respective courts take care to analyze the question presented as involving the legislature's exercise of a specially granted power as we have analyzed it.
The earliest of these three cases, in point of time, was Clements v. Powell, supra. Notably, this case involved a challenge to the propriety of a legislative amendment to the terms of the originally proposed constitutional amendment after the amendment (as amended) had been duly ratified by the Georgia electorate. Apparently loathe to thwart the expressed will of the people, the Georgia court upheld the action of the legislature but did so without reason or discussion of the issues involved.
The next case,In re Senate Concurrent Resolution No. 10, supra, was an advisory opinion of the Colorado court issued at the request of the governor prior to the submission of a proposed constitutional amendment to the voters. However, in addition to the fact that this opinion was advisory [[Orig. Op. Page 9]] only, the particular portion of the opinion which dealt with the authority of the legislature to withdraw and amend the proposed constitutional amendment was clearly dicta. The governor had asked two questions the first pertaining to the meaning of certain language in the proposed amendment, and the second relating to the authority of the legislature to withdraw and amend the proposal. The second question was to be answered only in the event the first question (as phrased) was answered in the negative. However, the court answered the first question in the affirmative thus rendering it totally unnecessary for it to have commented on the second question at all.
The Alabama case,Opinion of the Justices, supra, was another advisory opinion rendered prior to the ratification election. However, this case is even less in point than either of the other two since it involved only the question of whether the legislature might, at a subsequent session, alter the date of a special election to be called to ratify a proposed amendment which had been passed by an earlier session of the same legislature. The court, in sustaining the change in the date of the election, found ". . . no constitutional impediment in the same Legislature at this succeeding Regular Session changing the date for holding the election of the proposed amendment. . . ." However, as we have heretofore indicated, the proper test in our state is not whether there exists a specific limitation upon the legislature's power to withdraw and amend a proposed constitutional amendment; rather, the question here is whether there exists a specific grant of power to the legislature to perform this act.
Having concluded that your first question, as paraphrased, must be answered in the negative, we proceed to consideration of your second question. This inquiry is as to whether the legislature might (as an alternative to withdrawing and amending its original proposal) propose a second and different amendment to the same portion of the constitution as is the subject of the previously proposed amendment to the end that both amendments would be voted upon by the people at the same general election.
We believe that this question may be answered in the affirmative. In the first place, the amendatory section of our constitution Article XXIII, § 1 (Amendment 37),supra [[Orig. Op. Page 10]] expressly contemplates the possibility that the legislature might propose more than one amendment to the same portion of the constitution and provides that:
". . . if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such amendments separately. . . ."
Additionally, our research has disclosed a number of court decisions from other jurisdictions which support this view. See, e.g.,McBee v. Brady, 15 Ida. 761, 100 Pac. 97 (1909); and Utter v. Moseley, 16 Ida. 274, 100 Pac. 1058 (1909), both upholding the validity of the legislature's proposal of two amendments to the same section of the Idaho constitution.
More recently, the supreme court of Arizona, in State ex rel. Nelson v. Jordan, 104 Ariz. 90, 449 P.2d 18 (1968), relying on theMcBee case, likewise approved the submission of two proposed constitutional amendments at the same election, both of which would have amended (among other sections) the provisions of Article V, § 1 of the Arizona constitution.5/
In affirmatively answering your second question on the basis of these cases (which represent the only authority which we have located upon the matter at hand) we would, however, be remiss not to direct your attention to a potential consequence of this being done without some indication by the legislature as to which of the proposals is to control in the event that both are approved by the voters. The rule appears to be well settled that, in the absence of a constitutional provision to the contrary, if the two or more amendments to a state constitution which are proposed at [[Orig. Op. Page 11]] the same election are in irreconcilable conflict, and both are approved by the voters, both amendments must fall. See,McBee v. Brady and Utter v. Moseley, supra, together with 16 Am.Jur.2d, Constitutional Law, 248 (1964).6/
To avoid that possible result here, we would suggest that in any conflicting "second amendment" which the 41st legislature might decide to propose to the portion of the constitution which is also the subject of the earlier proposal, there be included a statement signifying which measure is to control in the event that both are approved by the voters.
We trust that the foregoing will be of assistance to you.
Very truly yours,
ROBERT J. DORAN
Deputy Attorney General
DONALD FOSS, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/See, Joint Rule 18, as most recently adopted by the 41st legislature, which is set forth in the 1969 legislative manual at page 263.
2/See, RCW 29.27.060, et seq. In addition, under Article III, § 17 of the constitution, the secretary of state is required to ". . . keep a record of the official acts of the legislature, . . ." and under RCW 43.07.040 (1), he is charged with custody of ". . . all acts and resolutions passed by the legislature; . . ."
3/See, California constitution Article I, § 22, which reads as follows:
"The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."
This provision appears to be only one of several portions of that constitution (as drafted in 1879) which was drawn upon by the framers of the Washington constitution in 1889. See, Appendix "Comparative Study of Articles" State of Washington Legislative Manual, p. 218 (1969).
4/The amendatory section of the Alabama constitution is contained in Article XVIII, § 284; in Colorado, see Article XIX, § 2; and in Georgia, see Article XIII, § 1, P 1.
5/Further support for our conclusion may be found in Opinion to the Governor, 78 R.I. 144, 80 Atl.2d 165 [[*80 A.2d 165]](1951), which, although involving a somewhat different constitutional provision than ours, nevertheless upheld submission to the electorate at the same election of two amendments to the same section of the Rhode Island constitution. See, also, the opinion of Cardozo, J., inBrowne v. City of New York, 241 N.Y. 96, 149 N.E. 211 (1925), involving constitutional provisions which establish an amendatory process similar to Rhode Island.
6/In Arizona, this result is voided by means of a provision in the amendatory section of the Arizona constitution which gives precedence, in such a case, to the amendment among two or more conflicting proposals which "receives the greatest number of affirmative votes." See,State ex rel. Nelson v. Jordan, supra.