AGO 1965 No. 10 - Mar 3 1965
LEGISLATURE ‑- SPECIAL SESSION ‑- PROCEDURAL RULES ‑- AUTHORITY OF EACH HOUSE TO ADOPT ‑- RESOLUTION ‑- REINTRODUCTION IN HOUSE WHEREIN THEY ORIGINATED OF BILLS, MEMORIALS AND RESOLUTIONS INTRODUCED AT REGULAR SESSION.
While the constitution provides that bills may originate in either house of the legislature, the manner or method governing the introduction of bills, memorials or resolutions and the procedure to be followed prior to final passage or adoption thereof are subject to the express constitutional rule‑making power of each house. Therefore, since there is no limitation or restriction in the constitution, the house and/or senate may in the exercise of its discretion adopt a resolution at a special session providing that all bills, memorials and resolutions introduced but not enacted or adopted during the regular session shall be reintroduced at the special session in the house wherein they originated; to retain the same number; to be placed in the same committee; or to otherwise hold their same position in the special session as was held during the regular session prior to final passage in that house.
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March 3, 1965
Honorable Robert M. Schaefer
Speaker, House of Representatives
Cite as: AGO 65-66 No. 10
By letter dated February 26, 1965, you requested an opinion of this office on a question which we paraphrase as follows:
In the event that the governor should convene a special session of the legislature, is there any constitutional limitation or restriction which would prevent the house and/or the senate from adopting a resolution providing that all bills, memorials and resolutions which were introduced but not enacted or adopted during the regular session shall be considered as reintroduced at the special session in the house wherein they originated; to retain the same number; to be placed in the same committee or to otherwise hold their same position in the special session as during the regular session prior to final passage in that house?
We find nothing in the Constitution which would prohibit such procedure.
[[Orig. Op. Page 2]]
At the outset it should be noted that should the governor, pursuant to Article III, § 7, of the state Constitution, call a special session of the legislature, the legislature is not limited in the "legislative business" it may consider. State v. Fair, 35 Wash. 127, 76 Pac. 731 (1904). See, also, AGO to The Honorable Clinton S. Harley, Senator, 43rd District, dated April 25, 1949 [[Opinion No. 49-51-20]], a copy of which is enclosed.
It should be further borne in mind that the state Constitution is not a grant but a restriction on the law-making power, and the power of the legislature to enact reasonable laws is unrestrained except where either expressly or by fair inference it is prohibited by the state or federal Constitution. Clark v. Dwyer, 56 Wn. (2d) 425, 353 P. (2d) 941 (1960); and cases cited therein. As the court stated inStandard Oil Co. v. Graves, 94 Wash. 291, 307, 162 Pac. 558 (1917):
". . . The state Constitution is a limitation upon the actions and powers of the legislature, instead of a grant of power. So far as the power of the legislature is not limited by the Constitution, it is unrestrained. . . ."
Article II, § 20, of the state Constitution, reads as follows:
"Any bill may originate in either house of the legislature, and a bill passed by one house may be amended in the other."
The manner or method governing the introduction of bills, memorials or resolutions, and the procedure to be followed in the legislative halls prior to final passage or adoption thereof are for the most part not controlled by the Constitution but are left to the rule‑making power of each house. Article II, § 9, of the state Constitution, reads as follows:
"Each house may determinethe rules of its own proceedings, punish for contempt and disorderly behavior, and, with the concurrence of two-thirds of all the members elected, expel a member, but no member shall be expelled a second time for the same offense." (Emphasis supplied.)
See, also, Appendix A, where certain other constitutional provisions are set forth.
[[Orig. Op. Page 3]]
The constitutional rule‑making power of our legislature is a power possessed by legislative bodies generally. In 49 Am.Jur., States, Territories, and Dependencies, § 30, the following statement is found:
"The power to organize is inherent in each legislature or general assembly. This includes the power of selecting its own presiding officer, clerks, and committees,prescribing its rules of procedure, and in doing whatever is essential or expedient in the exercise of the powers conferred. When the power to organize is merely a legal intendment, the power consists in a right to organize in the customary manner, and it therefore excludes the notion of a minority ruling in the transaction; and in its deliberations each member of the particular branch is entitled to a voice in all proceedings. Observance of the rules of a legislative body which regulate the passage of statutes is a matter entirely within the legislative control and discretion, not subject to review by the courts."1/ (Emphasis supplied.)
[[Orig. Op. Page 4]]
InState ex rel. Dunbar v. State Board, 140 Wash. 433, 445, 446, 249 Pac. 996 (1926), one of the questions raised concerning the constitutionality of the act being challenged was that it was not properly authenticated after it was passed over the governor's veto. The bill was originally passed and signed by the speaker of the house and president of the senate. However, after it was passed over the governor's veto, the presiding officers did not again sign it. The court said:
"An examination of these sections shows that it is mandatory that the presiding officers of the two houses of the legislature shall sign the bill upon its original passage, but that there is no provision for such signature upon a repassage after veto; that, after a veto, 'it shall become a law' when two-thirds of the members of each house have voted to pass it over the governor's veto. The way is left open for the legislature to provide by rule for the manner of authentication. There is no question that if the Constitution had provided, upon a repassage of a vetoed bill, that the designated officers should sign it, the absence of such signature on the enrolled bill in the secretary of state's office would render that bill invalid; but, in the absence of any constitutional provision relating to this matter, the legislature under its inherent power has the right to adopt any procedure that it sees fit by which to transmit to the secretary of state the information that the bill has been finally passed and present the enrolled bill to that office for filing." (Double emphasis ours.)
Our review of the state Constitution does not reveal any provision which would limit or restrict either house from adopting in the exercise of its discretionary power a resolution such as that contemplated by your question. Therefore, to borrow the language from the court in the Dunbar case, supra, the "way is left open for the legislature to provide by rule for the manner" in which bills will be introduced and processed at the special session. Accordingly, it is our opinion that the house and/or senate is authorized under Article II, § 9,supra, to so [[Orig. Op. Page 5]] proceed to adopt a resolution such as you have suggested.
It should be further pointed out that if the legislature were to follow the procedure suggested by your question, no person could challenge the constitutionality of any act passed at the special session which is otherwise duly enacted into law simply on the basis of the "procedural steps" adopted by the legislature. The "enrolled bill doctrine" prevents any person from raising "procedural questions" in an attempt to invalidate legislation otherwise duly enacted. This doctrine was first announced inState ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201 (1893).2/ The latest case in which this doctrine has been reaffirmed is State ex rel. Toll Bridge v. Yelle, 61 Wn. (2d) 28, 377 P. (2d) 466 (1962). In the latter case the court adhered to the enrolled bill doctrine although [[Orig. Op. Page 6]] certain judges indicated in concurring opinions that there may be occasion where the court may not be bound thereby. In our opinion it would be applied in the instant case if the matter were ever tested. The majority in theYelle case stated the rule as follows:
"Again we decline to discard the enrolled-bill rule and substitute in its place the journal-entry rule. It is just short of 70 years since the enrolled-bill doctrine was first announced inState ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201. That case is extraordinarily persuasive because it was written by Judge Hoyt, who, but 4 years earlier, had served as President of the Constitutional Convention. It is unnecessary to repeat the arguments for and against each theory because they are adequately summarized in Derby Club, Inc. v. Becket, 41 Wn. (2d) 869, 252 P. (2d) 259, and Roehl v. Public Util. Dist. No. 1, 43 Wn. (2d) 214, 261 P. (2d) 92.
"The matter was simplified by Judge Mackintosh in State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, 249 Pac. 996, in a single sentence:
"'. . . 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.)
InState ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 840, 841, 232 P. (2d) 833 (1951), the court refused to resort to legislative history to determine whether Article II, § 38, had been violated. The court said:
"The final contention made by respondents is that the act violates Const. Art. II, § 38, which provides:
[[Orig. Op. Page 7]]
"'No amendment to any bill shall be allowed which shall change the scope and object of the bill.'
"We are informed that engrossed Senate bill No. 156, which related to highways and roads, the motor vehicle fund, and the Agate pass bridge, legislated on the subject of retirement of the bridge bonds, but, when the bill reached the House of Representatives, it was amended by striking the title and everything after the enacting clause, and made to read as in the act before us. This information comes to us in the form of an affidavit.
"We cannot consider the objection made, as it involves legislative history. We may resort to such history to ascertain legislative intent when a statute is ambiguous or its meaning doubtful or obscure, but we will not go behind an enrolled enactment to determine the method, the procedure, the means or the manner by which it was passed in the houses of the legislature. State ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201; State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, 249 Pac. 996;Morrow v. Henneford, 182 Wash. 625, 47 P. (2d) 1016;Shelton Hotel Co. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478." (Emphasis supplied.)
In conclusion, it is the opinion of this office that each house of the legislature under Article II, § 9, of the state Constitution has the authority to adopt rules governing its own proceedings, and in the absence of any other limitation or restriction in the Constitution has the power to adopt a resolution at a special session providing that all bills, memorials or resolutions introduced but not enacted or adopted during the regular session shall be considered as reintroduced at the special session; to retain the same number; to be placed in the [[Orig. Op. Page 8]] same committee or to otherwise hold their same position in the special session as was held during the regular session in the house in which they originated prior to final passage therein. Furthermore, since our court follows the enrolled bill doctrine, if such procedure were followed it could not be used, in any event, as the basis for a challenge of the constitutionality of laws otherwise duly enacted.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
ROBERT J. DORAN
[[Orig. Op. Page 9]] APPENDIX "A"
The following provisions in Article II, of the state Constitution which generally bear on the subject and which cannot be changed by rules should be noted:
"The style of the laws of the state shall be: 'Be it enacted by the Legislature of the State of Washington.' And no laws shall be enacted except by bill."
"Any bill may originate in either house of the legislature, and a bill passed by one house may be amended in the other."
"The yeas and nays of the members of either house shall be entered on the journal, on the demand of one‑sixth of the members present."
"No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor."
"No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session, and under such rules as the legislature shall prescribe."
"No bill shall beconsidered in either house unless the time of its introduction shall have been at least ten days before the final adjournment of the legislature, unless the legislature shall otherwise direct by a vote of two-thirds of all the members elected to each house, said vote to be taken by yeas and nays and entered upon the journal, or unless the same be at a special session." (Emphasis supplied.)
[[Orig. Op. Page 10]]
See, also, Article XXIII, § 1, of the state Constitution, which reads 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."
*** FOOTNOTES ***
1/Our court stated that it would refrain from interfering in the procedural activities of the legislature as a co-ordinate branch of state government. InState ex rel. Daschbach v. Meyers, 38 Wn. (2d) 330, 332, 229 P. (2d) 506 (1951), relators sought a writ of mandate directing the respondents to affix the true date of the passage of a bill. The court said:
"There is still another reason why the writ should not issue. The legislature and this court are co-ordinate [[coordinate]]branches of our state government, and we cannot interfere with the legislature in its legislative processes, but are limited to a consideration of the constitutionality and interpretation of its acts."
See, also,Smith v. Centralia, 55 Wash. 573, 104 Pac. 797 (1909); State ex rel. Gunning v. Odell, 58 Wn. (2d) 275, 362 P. (2d) 254 (1961); and State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 Pac. 92 (1916).
2/In the course of its opinion, the court in the Jones case, supra, made reference to a Louisiana case which may be of particular interest in connection with the question you have raised. The Louisiana Constitution (unlike the Washington Constitution) requires bills to be read a certain number of times. Our court said at page 470:
"In the State of Louisiana, when the Constitution of that state contained, among other mandatory provisions, one requiring it to keep a journal, and the express provision that 'no bill shall have the force of a law until on three several days it be read in each house of the general assembly, and free discussion allowed thereon, unless four-fifths of the house where the bill is pending may deem it expedient to dispense with the rule,' the supreme court of that state in the case of theLouisiana State Lottery Co. v. Richoux, 23 La. An. 743 [[23 La. Ann. 743]], directly held that the 23 La. An. 743, directly held that the enrolled bill was conclusive upon the courts of the fact that all constitutional requirements had been complied with in its passage.
"InWhited v. Lewis, 25 La. An. 568 [[25 La. Ann. 568]], the "InWhited v. Lewis, 25 La. An. 568, the question was again before the court, and the same doctrine was unhesitatingly announced."