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Bob Ferguson

AGLO 1971 No. 30 - Feb 24 1971
Attorney General Slade Gorton

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                                                                February 24, 1971
Honorable Hubert F. Donohue
State Senator, 11th District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 30 (not official)
Dear Sir:
            By letter dated February 19, 1971, receipt of which is hereby acknowledged, you requested our opinion as to whether RCW 77.12.150
            ". . . conflicts with the anti-gambling statutes of this state and particularly the anti-lottery statutes, Chapter 9.59 RCW."
            Before proceeding to address ourselves to this question, which we believe is answerable in the negative, we think it appropriate to respond to certain other aspects of your present letter.  We will begin by referring to our letter to you of February 16, 1971, responding to your earlier request for our opinion as to the constitutionality, under Article II, § 24 of our state Constitution, of the procedures followed by the Washington state department of game in granting special hunting privileges on the basis of a drawing by lots.  In this letter we pointed out that the procedures which you were questioning had been expressly provided for by the legislature through its enactment of RCW 77.12.150, reading as follows:
            ". . .
            "Whenever the director finds that game animals have increased in numbers in any locality of the state to such an extent that they are damaging public or private property, or over-grazing their range, the commission may establish a special hunting season, designate the area and the number and sex of the animals that may be killed by a licensed hunter therein, promulgate necessary rules and regulations, and determine by lot the number of hunters that may hunt within such area and the conditions and requirements incident thereto.  The drawing shall take place at the city hall of the town nearest the area to be opened.  Notice of the establishing of such special hunting season and of the drawing shall be given in the manner provided for the publishing of orders opening or closing seasons."
             [[Orig. Op. Page 2]]
            Because of this factor, we advised you that it would be contrary to long-standing policy (related to the basic presumption of the constitutionality of all duly enacted legislation) for this office to issue an opinion on the question which you had submitted.  By way of explanation of this policy, we quoted from (and enclosed a copy of) AGO 1945-46 p. 269 [[1945-46 OAG 269 to Prosecuting Attorney, Pacific County on July 17, 1945]], as follows:
            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."
            Thereafter, some question apparently arose, based upon language appearing in this 1945 opinion, as to whether there might not exist some exceptions to this policy; also, through citations to Article III, § 21 of our Constitution and RCW 43.10.030, you have now suggested that the attorney general may be required to advise you, as a state legislator, with respect to the constitutionality of the statute in question.1/   
[[Orig. Op. Page 3]]
            It is to these assertions that we believe it necessary to respond before discussing your latest question.
            While we briefly explained to you in our letter of February 16 the reasons for our long-standing policy of refraining from issuing any opinions upon the constitutionality of duly enacted statutes, we omitted to point out an additional compelling reason for this policy.  This additional reason arises from the provisions of RCW 7.24.110, a part of the uniform declaratory judgments act which was adopted by our legislature in 1935 (see, chapter 113, Laws of 1935), which reads in part as follows:
            ". . .  In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard."  (Emphasis supplied.)
            By this enactment, the legislature has imposed upon the attorney general a responsibility to appear and present all available legal arguments to support the constitutionality of any duly enacted statute whenever such a statute is attacked in a declaratory judgment proceeding.2/   Accordingly if (as has recently been suggested in reports appearing in the news media) a court action should be initiated to obtain adjudication of the constitutionality of RCW 77.12.150, supra, the function to be performed by the attorney general, as provided for by the legislature, will of necessity be that of appearing and arguing in defense of the challenged statute.  Because of this factor, which is pertinent in the case of any statute which might be challenged on constitutional grounds, it readily follows that there can be no justifiable exceptions to our policy, in response to opinion requests, of presuming the constitutionality of any statute which the legislature, in its wisdom, has duly enacted.
            On the other hand, in the case of such activities as bingo or the operation of pinball machines, which were covered at some length in AGO 1969 No. 9 [[to Joel M. Pritchard, State Senator on April 30, 1969]](to which you have referred in the concluding paragraph of your latest letter), this factor was not present ‑ for neither of these activities, nor any of the other gambling games which were passed upon in that 1969 opinion, had been in any manner authorized (or "legalized")  [[Orig. Op. Page 4]] by any statutes duly enacted by the legislature.  Therefore, the policy reasons which have made it necessary for us to decline the issuance of an opinion to you on your question regarding the constitutionality of the game department's special hunting season drawing simply did not exist in the case of these other activities.
            We recognize, as you have stated in your most recent letter, that you are not an attorney; however, we hope, nevertheless, that you are able to understand now, based upon the foregoing detailed explanation of the matter, the basis for our initial response to your opinion request.  Of course, we most certainly acknowledge that you, as a member of the legislature, are entitled to receive the advice and counsel of this office on matters (including questions of constitutional interpretation) pertaining to your duties and functions in that capacity.  However, where the constitutionality of legislation is concerned, our assistance to the legislature must ‑ for the reasons herein explained ‑ be restricted to the area of advising on the constitutionality of proposed legislation only.
            We turn, then, to your present question; i.e., whether RCW 77.12.150, supra,
            ". . . conflicts with the anti-gambling statutes of this state and particularly the anti-lottery statutes, Chapter 9.59 RCW."
            We have already quoted the provisions of RCW 77.12.150 above.  In so far as chapter 9.59 RCW is concerned, the material portion thereof is set forth in RCW 9.59.010 as follows:
            "A lottery is a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance.
            "Every person who shall contrive, propose or draw a lottery, or shall assist in contriving, proposing or drawing a lottery, shall be punished by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both."
             [[Orig. Op. Page 5]]
            The inference raised by your present question is that, somehow, both the director of the department of game and all prospective hunters participating in the special hunting season drawing prescribed by the first of these two statutes should be regarded as being subject to criminal prosecution for violations of the second.  However, with this thesis we simply cannot agree.  Instead, giving effect to the applicable rules of statutory construction it is our opinion, first, that there is no conflict between the provisions of RCW 77.12.150 and RCW 9.59.010; and, secondly, even if these statutes should be regarded as being in conflict, the proper reconciliation of such conflict would be to characterize those procedures provided for in RCW 77.12.150 as constituting a legislatively authorized exception to the legislatively imposed prohibitions of RCW 9.59.010.
            The first of these two propositions ‑ i.e., the absence of conflict ‑ is based upon the fact that nothing contained in RCW 77.12.150 purports to require the payment of any valuable consideration by persons seeking to obtain such special hunting privileges as may be awarded under this statute.  And of course, as a criminal statute, the provisions of RCW 9.59.010 with respect to this element of the defined crime must be strictly construed to the end that no offenses not entitled to be included therein shall be prosecuted.  Accord, State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957), and cases cited therein.
            As for the second proposition upon which we rely in answering your question, the applicable principle of statutory construction is the rule of pari materia; i.e., the principle that where two statutes relate to the same subject matter, a court will, in its attempt to ascertain legislative purpose, read the sections as constituting one law to the end that a harmonious total scheme which maintains the integrity of both is derived.  Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968), and cases cited therein.  In this case, the appropriate means of giving effect to this rule and harmonizing any conflicts which may (in the minds of some) arguably exist between RCW 77.12.150 and RCW 9.59.010 is by giving effect to the following adjunct of the rule, as stated in People v. Breyer, 139 Cal. App. 547, 550, 34 P.2d 1065 (1934):
            "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exeption to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it  [[Orig. Op. Page 6]] will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication . . ."

            In the case of RCW 9.59.010 versus RCW 77.12.150, the significant point to be noted is that the first of these two statutes was enacted in 1909 (§ 212, chapter 249, Laws of 1909), whereas the second of them originated some thirty-eight years later, as § 25, chapter 275, Laws of 1947.  Accordingly it follows that the legislature, in 1947 (which must be presumed to have been aware of the applicable rules of construction)3/ must be regarded as having manifested an intent, to the extent of any conflict between this enactment and the preexisting provisions of RCW 9.59.010, that the procedures contemplated by the later of these two statutes would constitute a permissible exception to the prohibitions contained in the earlier statute.
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/In this regard, your current letter reads as follows:
            "Article III, paragraph 21, of the Constitution of the State of Washington makes you my legal advisor: 'The Attorney General shall be the legal advisor of the state officers and shall perform such other duties as shall be prescribed by law.'  RCW 43.10.030, inter alia, provides that the Attorney General shall:
            "'(5) Consult with and advise the governor, members of the legislature and other state officers, and when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers;
            "'(7) Give written opinions, when requested by either branch of the legislature, or any committee thereof, upon constitutional or legal questions;'"
2/Accord, Clark v. Seiber, 49 Wn.2d 502, 503, 304 P.2d 708 (1956), in which the court said of this statute:
            ". . .  The purpose of this provision is to protect the public, should the parties be indifferent to the result.  The state is interested in the constitutionality of its statutes as they affect the public welfare.  See Parr v. Seattle, 197 Wash. 53, 84 P.2d 375 (1938)."
3/See, State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 131 P.2d 943 (1942).