LEGISLATURE ‑- INITIATIVE AND REFERENDUM ‑- EFFECTIVE DATE OF BILLS SUBJECT TO REFERENDUM
All bills subject to referendum which were passed by the 1973 first extraordinary session of the legislature will become effective at midnight on Sunday, July 15, 1973, unless a later effective date is specified therein.
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June 8, 1973
Honorable Richard O. White
Statute Law Committee
Olympia, Washington 98504
Cite as: AGLO 1973 No. 63
This is written in response to your recent letter requesting our opinion as to the effective date of acts subject to referendum which were passed by the recently adjourned 1973 first extraordinary session.
It is our opinion that these acts will become effective at 12:00 midnight, on Sunday, July 15, 1973, unless a later effective date is specified therein.
As we recently advised in AGO 1973 No. 8 [[to Municipal Research & Services Center of Washington on January 12, 1973, an Informal Opinion AIR-73508]], copy enclosed,
"Under Article II, § 41 (Amendment 26) of the Washington constitution an act of the legislature which is subject to referendum does not take effect until ninety days after the final adjournment, sine die, of the session at which it was enacted; . . ."
The initial question presented by your request is simply that of when, as a matter of both law and fact, the final adjournment, sine die, of the 1973 first extraordinary session occurred. Thus we are not here confronted, as we were following the adjournment of the earlier, 1971 first extraordinary session, with a possible application of the so-called "enrolled bill doctrine" as related to the date of passage of some particular bill. See, e.g., Morrow v. Henneford, 182 Wash. 625, 47 P.2d 1016 (1935); cf., State ex rel. Daschbach v. Meyers, 38 Wn.2d 330, 229 P.2d 506 (1951).1/ For [[Orig. Op. Page 2]] this reason, unimpeded by that rule of evidence, we have no doubt that a court confronted with this initial question would look beyond the face of any bills or resolutions passed on the last night of the session in order to ascertain the true date and time of its adjournment. And in so looking we further have no doubt that a court would find on the basis of undisputed evidence that the actual time of adjournment of this session was 3:28 a.m., on the morning of Monday, April 16, 1973. Accord, such contemporaneous newspaper accounts of the last night of the session as the Associated Press report which appeared on page A5 of the Seattle Post Intelligencer of Tuesday, April 17, 1973, as follows:
"BY DALE NELSON
"OLYMPIA‑-(AP)‑-The 43rd Washington legislature adjourned early yesterday after approving gambling legislation and an income tax package in the windup of the shortest combined regular and special session in 10 years.
"The lawmakers called it quits at 3:28 a.m. on what would have been the session's [sic] 99th day. They will be back on May 4 for the first in a series of weekend committee meetings and on Sept. 8 for a nine‑day special session.
". . ."
Having thus determined the time of adjournment of the 1973 first extraordinary session we must turn, next, to the following two additional questions:
(1) Is any portion of the day of adjournment to be counted in computing the ninety-day time period prescribed by Article II, §41 (Amendment 26), supra?
[[Orig. Op. Page 3]]
(2) If not, will the fact that the ninetieth day (treating April 17 as the first day) will fall on a Sunday (July 15, 1973) cause that day not to be counted?
On the first of these two questions our research has revealed a split of authority, with no determinative Washington cases, as to whether the day of adjournment is to be counted in giving effect to such constitutional provisions as ours above quoted.2/ However, we have also determined that consistent practice over the years in our own state has been to exclude all of that day in making this constitutional computation ‑ as evidenced by explanatory statements appearing in each published volume of the session laws since 1905. Accord, what appears to be the apparent weight of authority from other states.3/ Therefore, accepting this uniform practice as correct, we conclude that the first day to be counted in determining the effective date of bills subject to referendum which were passed at the 1973 first extraordinary session was Tuesday, April 17, 1973.
From this conclusion it will then be readily seen that the ninetieth day of this period will be Sunday, July 15, 1973 ‑ based upon fourteen countable days in April, thirty-one in May, thirty in June and fifteen in July. Accordingly it follows that unless that last day is to be excluded from the computation because it falls on a Sunday, the ultimate answer to your over-all question will be that those bills with which we are here concerned will become effective at 12:00 midnight of that date ‑ except, of course, where a later effective date is specified in any particular bill. We turn, then, to this final issue which involves, essentially, the applicability of an early statute (now codified as RCW 1.12.040) providing that:
"The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday or Sunday, and then it is also excluded."
The argument to be considered is that this statute applies so as to require an exclusion of the final calendar [[Orig. Op. Page 4]] day in a time period such as is prescribed by Article II, § 41 (Amendment 26), supra, when that day falls on a Sunday or holiday. Such an argument, however, is no longer open in this state. It was squarely presented to the court and answered in the negative some eight years ago in the case of State ex rel. Uhlman v. Melton, 66 Wn.2d 157, 401 P.2d 631 (1965), wherein the court, in determining the effective date of a certain Tacoma city ordinance in the light of a charter provision stating that all nonemergency ordinances ". . . shall take effect only after the expiration of ten days from publication . . .," expressed itself as follows:
"Finally, relators argue that, with reference to the license tax ordinance, the tenth and last day for filing petitions fell on Sunday, July 7th, and that the filing of additional petitions on Monday was timely by virtue of RCW 1.12.040 which provides:
"The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday or Sunday, and then it is also excluded.
"There is no act remaining 'to be done' for an ordinance to become effective after its publication date. The passage of time alone is all that is required for the ordinance to become effective. RCW 1.12.040 does not purport to extend the effective date of an ordinance for an additional day of grace, should the effective date fall on Sunday. The cited statute is not here apposite."
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Although the question of whether this rule still applies in our state with respect to the time of passage of a bill was presented to the supreme court in Distilled Spirits Inst. v. Kinnear, 80 Wn.2d 175 (1972), it was not there necessary for the court to rule upon this point because of its holding that the sixty-day constitutional limitation upon the duration of legislative sessions is inapplicable to extraordinary sessions called by the governor.
2/See, 50 Am.Jur., Statutes, § 511, and cases from other jurisdictions cited therein.