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Bob Ferguson

AGO 1952 No. 211 -
Attorney General Smith Troy


Chapter 137, Laws of 1951, is valid and subsisting law.

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                                                                 January 14, 1952

Honorable H. D. Van Eaton
Director of Public Institutions
Olympia, Washington                                                                                                 Cite as:  AGO 51-53 No. 211

Attention:  !ttMr. E. J. Nelson, Administratve Asst.

Dear Sir:

            Receipt is acknowledged of your letter of December 17, 1951, in which you request our opinion regarding the effect of § 69, chapter 139, Laws of 1951 on chapter 137, Laws of 1951.

            It is our conclusion that chapter 137, Laws of 1951, is valid and subsisting law.


            Section 69, chapter 139, Laws of 1951, repeals chapter 71.04 RCW and chapter 139 in its entirety provides a new mental illness hospitalization act.  Chapter 137, Laws of 1951, amends § 71.04.120 RCW and it is concerned with the deportation of non-resident insane, feeble minded and epileptic persons.  Chapters 137 and 139, Laws of 1951, were passed by the House on March 2, 1951, by the Senate on March 6, 1951, and signed by the Governor on March 15, 1951.  Neither of the two acts carried an emergency clause.  The effective date when these acts were passed must be determined by the last action necessary for passage.  The signature of the Governor is the last action necessary for passage since action by the Governor is as much a part of the legislative process as is that of the two houses of the legislature.  State ex rel. Stiner v. Yelle, 174 Wash. 402, 25 P. (2d) 91; Shelton Hotel Company v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478.

             [[Orig. Op. Page 2]]

            Our Supreme Court held in the case of In re Boyce, 25 Wash. 612, that fractions of days may not be permitted to determine questions of priorities concerning public acts, such as legislative acts or public laws.  Therefore, we must conclude that chapters 137 and 139, supra, were enacted at the same time.

            A fundamental rule of statutory construction is to ascertain and give effect to the intention of the legislature as expressed in the statute or statutes.  Layton v. Home Indemnity Company, 9 Wn. (2d) 25, 113 P. (2d) 538.  It will not be presumed that the legislature did a vain and useless thing.

            "The legislature * * * can scarcely be supposed to intend its own stultification."  State v. Asotin County, 79 Wash. 634, 140 Pac. 914, quoting Endlich, Interpretation of Statutes, § 264.

            A review of the enactment history of various deportation statutes and mental illness hospitalization acts will assist in determining the legislative intent in enacting chapters 137 and 139, Laws of 1951.  Deportation has been invariably the subject matter of legislation separate and apart from mental illness hospitalization legislation.  The Washington territorial legislatures enacted laws on the subject of mental illness hospitals.  The first declaration of a Washington legislature on non-resident mentally ill persons is found in section 30 of an act entitled

            "AN ACT in relation to the insane of the state of Washington and making appropriations for the maintenance thereof, and declaring an emergency."  Approved March 13, 1890, Laws of 1890.

            This section has since remained effective in amended form, but has been contained only in mental illness hospitalization acts.  It permitted temporary confinement of non-residents [[nonresidents]].

            However, it was not until the enactment of chapter 138, Laws of 1905, that the legislature considered the subject of deportation of non-resident insane persons.  This statute was declared unconstitutional in the case of State ex rel. MacIntosh v. Superior Court, 45 Wash. 248.  The legislature did not legislate on the subject again until the "alien and non-resident [[nonresident]]insane persons" act, chapter 158, Laws of 1921, was enacted.  This statute was amended by chapter 72, Laws of 1939.  Chapter 137, Laws of 1951 amends the two above statutes.

             [[Orig. Op. Page 3]]

            This historical analysis clearly evinces that the legislature always has treated deportation of insane non-residents [[nonresidents]]separate and apart from the mental illness hospitalization acts.

            Our Supreme Court said in Whitfield v. Davies, 78 Wash. 256:

            "* * * It is a well recognized rule of interpretation that legislative enactments are not, any more than any other writings, to be defeated on account of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute.  Harper v. State, 109 Ala. 28, 19 South. 857."

            We are, therefore, of the opinion that although the legislature repealed § 71.04 RCW by section 69, chapter 139, Laws of 1951, it intended to give full effect and meaning to chapter 137, Laws of 1951.

            We are of the further opinion that the legislature did not intend to make enforcement of chapter 137,supra, contingent upon the continued existence of the repealed chapter (§ 71.04 RCW [[chapter 71.04 RCW]]).  Sutherland, Statutory Construction (Third Ed.) § 1903, reads:

            "* * * If the legislature has expressed its purpose intelligibly in the amendatory act and provided fully upon the subject considered, the majority of courts hold that it is a reasonable conclusion that the legislature did not intend to make the enforcement of the statute contingent on the continued existence of the repealed statute.  The reference to the repealed statute is dismissed as surplusage and the will of the legislature as embodied in the provisions of the attempted amendment are enforced as an independent act.  * * *"

            Where the legislature enacts a statute purporting to amend a repealed statute, our Supreme Court has held its reference to the repealed statute should be regarded as surplusage if the title to the amendatory act is sufficiently broad to permit the matter set out to be considered an independent enactment.  Our Supreme Court said in the case of Whitfield v. Davies, supra:

             [[Orig. Op. Page 4]]

            "It is argued, however, that inasmuch as subd. 9 of the act of 1890 is in conflict with § 3 of the act of 1897, there was a repeal by implication; hence, that the former act could not be amended by reference to it, or by reference to its subject matter which was carried into the code.  There are two answers to this contention. The first is that the title of the act of March 18 is broad enough to give the act validity without reference to the section of the code.  In such cases an erroneous reference to the former statute may be treated as surplusage, and the statute becomes in effect an independent act.  State ex rel. Wolf v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L.R.A. (N.S.) 707.  * * *"

            It is to be noted that the above conflicting statutes did not become effective on the same day.  However, by analogy we are of the opinion that the title of chapter 137, Laws of 1951, is sufficiently broad to give the Department of Public Institutions authority to transport non-resident insane, feeble‑minded and epileptic persons.  The title to chapter 137,supra, reads:

            "AN ACT relating to alien and non-resident [[nonresident]]feeble minded and epileptic persons, providing for their transportation, and amending section 71.04.120 RCW."

            59 C.J. 853, Statutes § 424, reads in part:

            "Contrary to the rule stated in the preceding section, that a statute which has been repealeden toto cannot be amended, it is held in many jurisdictions that a statute which purports to amend a statute which has been repealeden toto is valid where the provisions of the new statute are independent and complete in themselves and stand like independent enactments * * * all that is necessary to render such an amendment valid is that it expresses the legislative purpose and provides fully upon the subject considered.  It will then be considered as the latest expression of the legislative will, although  [[Orig. Op. Page 5]] there was, in fact, nothing which could be amended and reference to the statute amended may be treated as surplusage."

            Further, chapter 137,supra, embraces the subject of epileptic persons while there is no mention of epileptic persons in chapter 139,supra.  Thus, chapter 137 may be considered an independent enactment containing specific authority to the Director of Public Institutions to transport or enter into reciprocal agreements with other states for the mutual exchange of insane, feeble‑minded and epileptic persons.

Very truly yours,

Attorney General

Assistant Attorney General