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AGLO 1972 No. 18 -
Attorney General Slade Gorton

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                                                                  March 20, 1972

Honorable Robert S. O'Brien
State Treasurer
Legislative Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 18 (not official)

Dear Sir:
            This is written in response to your recent letter requesting our opinion on certain questions pertaining to veterans' bonuses for service in the Viet Nam conflict under the provisions of chapter 154, Laws of 1972, Ex. Sess.
            Question (1):
            Your first question refers to RCW 72.32.130, as amended by § 7 of the subject 1972 act.  The opening four paragraphs of this RCW section codify certain preexisting statutory provisions relating to the issuance of bonds for the purpose of funding earlier veterans' bonuses for veterans of World War II and the Korean conflict ‑ as provided for in chapter 180, Laws of 1949, and chapter 292, Laws of 1955, respectively.  Basically speaking, these provisions call for the imposition of an additional excise tax upon the sale of cigarettes ‑ with the proceeds of this tax to be used to pay debt service on certain "limited obligation" bonds by which the bonus payments themselves were financed.  Accord, Gruen v. State Tax Commission, 35 Wn.2d 1, 211 P.2d 651 (1949).
            The amendment to this statute which is contained in § 7 of chapter 154, supra, begins by making reference to these prior veterans' bonus bonds and provides as follows:
            "When all bonds herein authorized and all interest thereon have been fully paid, all proceeds thereafter received from the excise tax on cigarettes imposed by chapter 82.24 RCW as now or hereafter amended, shall be paid into the war veterans' compensation fund, herewith created, for distribution to  [[Orig. Op. Page 2]] veterans who served during the Viet Nam conflict as provided by this 1972 amendatory act:  PROVIDED, That, whenever the receipts into the war veterans' compensation fund during any year exceed four million five hundred thousand dollars, all sums received above that amount shall be transferred to the state general fund.
            "The amounts directed to be paid into the war veterans' compensation fund as provided by this 1972 amendatory act shall be a first and prior charge, subject only to amounts previously pledged for the payment of interest on and retirement of bonds heretofore issued, against all cigarette tax revenues collected pursuant to RCW 82.24.020, 73.32.130, and 28A.47.440."  (Emphasis supplied.)
            Your first question, as we understand it, is whether the phrase "during any year" as above underscored refers to a calendar year or to a fiscal year; e.g., calendar year 1972 or the fiscal year beginning on July 1, 1972, and ending on June 30, 1973.
            Before responding directly to this question let us first note the fact that chapter 154, supra, does not contain an "emergency" clause ‑ and hence this enactment will not become effective until May 23, 1972, or ninety days after adjournment of the session.  Accord, Washington State Constitution Article II, § 1 (Amendment 7).  From this fact one may easily discern the fiscal consequences of our answer to your question ‑ in terms of the amounts of cigarette tax revenues to be placed in the war veterans' compensation fund during the remainder of the current (1971-73) fiscal biennium.  If the critical phrase "during any year" refers to a fiscal year, then 4.5 million dollars in such revenues will be placed in the fund between July 1, 1972, and June 30, 1973, and the only additional amount to be placed in the fund will be such cigarette tax revenues as are received between May 23rd when the act becomes effective, and June 30, 1972 ‑ the end of the current fiscal year.  You have advised us that this latter amount is projected to be considerably less than the 4.5 million dollar sum which is allocable to the fund for a full year.
            On the other hand, if the phrase "during any year"  [[Orig. Op. Page 3]] refers to a calendar year, then it will follow that all revenues received from the subject excise tax on and after the effective date of the act, during the remainder of the current calendar year will be placed in the compensation fund ‑ by which procedure the full sum of 4.5 million dollars will (it is projected) thus be realized for the fund during the remainder of calendar year 1972.  And then, in addition, during the first two to three months of calendar year 1973, an additional 4.5 million dollars in cigarette excise tax revenues allocable to the compensation fund will be received ‑ making the total income to the fund during the remainder of the current fiscal biennium the sum of nine million dollars.1/   With the foregoing in mind, it is our opinion that the referenced language should be taken to mean a calendar year rather than a fiscal year for the following three distinct reasons:
            (1) Because of the rule that the term "year," when used in a statute, is construed to mean a calendar year unless a different intent can be gathered from the statutory context in which the term appears; accord, Sims v. Bremerton, 190 Wash. 62, 66 P.2d 863 (1937);
            (2) because this construction of the phrase "during any year" as it appears in the 1972 amendment, supra, is consistent with the long-standing administrative construction of the identical phrase which appears in the immediately preceding paragraph of RCW 72.32.130, dealing with the war veterans' compensation bond retirement fund2/ see, e.g., Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957); and
            (3) because any other construction of the crucial  [[Orig. Op. Page 4]] language of this 1972 amendment would render the legislation incongruous if not absurd ‑ contrary to the rule of construction enunciated in such cases as Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).
            The incongruity, if not absurdity, of a construction of the phrase "during any year" as meaning a fiscal rather than a calendar year arises by reason of the provisions of § 8 of the subject 1972 veterans' bonus act.  By this section the legislature expressly appropriated from the war veterans' compensation fund ". . . the sum of nine million dollars, or so much thereof as is required to meet the annual obligations, . . ." for the remainder of the current, 1971-73 biennium.  Assuming as we must that the legislature was also aware of the fiscal projections which we have above outlined, it would be most incongruous to say that a nine million dollar appropriation would have been made from a fund which could not possibly receive this sum of money during the over-all period for which the appropriation was made ‑ and yet, as we have seen, this is precisely the result which would be reached if the measuring unit of time set forth in the key proviso to the amendment were construed to mean a fiscal rather than a calendar year.  In other words, only by viewing the phrase "during any year" as meaning a calendar year can the sum of money placed into the war veterans' compensation fund during the remainder of the current biennium be precisely equated to the dollar amount of the appropriation which the legislature has made from that fund.
            Accordingly, in our opinion, this is the proper construction to be placed upon the phrase ‑ and we so advise you by way of a direct answer to your first question, supra.
             [[Orig. Op. Page 5]]
            Question (2):
            Your next question contains two parts ‑ both dealing with subsection (2) of § 2, chapter 154, supra.
            By way of background, subsection (1) of this section establishes the dollar amount of the bonus at $250 per qualified veteran; however, § 4 of the act states that no cash bonus payments shall be made prior to January 2, 1973.  Subsection (2) of § 2 then provides that:
            "(2) In lieu of awaiting receipt of the stated money amounts as provided in subsection (1) above, any qualified person may elect to receive credit for tuition, incidental fees or other fees in such amount at any state institution of higher education, including community colleges and vocational technical institutions, or at private institutions of higher education within the state, such credit to be immediately available upon the processing of such person's claim for a bonus under this 1972 amendatory act; institutions of higher education entering into this program under this 1972 amendatory act shall be reimbursed at such time as the bonus payment would otherwise be made."
            The first issue which you have raised with regard to this subsection is whether the phrase "private institutions of higher education" may be said to include private vocational or technical institutions to the same extent as is expressly the case with regard to state institutions of higher education.  We would answer this question in the affirmative.
            In the abstract, the term "institutions of higher education" ordinarily denotes academic institutions beyond the secondary or high school level ‑ e.g., our traditional four-year colleges and universities and any related graduate or professional school.  However here, the legislature has expressly stated that in so far as state institutions of higher education are concerned, the term shall include community colleges and vocational technical institutions as well.  Having thus specially used the term "institutions of higher education" in connection with state schools, we can conceive of no valid reason to suspect  [[Orig. Op. Page 6]] that the legislature intended to use this term in a different sense when speaking of private institutions of higher education.  The apparent underlying purpose of this portion of the 1972 veterans' bonus statute was to encourage qualified Viet Nam veterans to use their bonus money in order to further their educations and thus their abilities to pursue a gainful occupation ‑ and we can see no basis for attributing to the legislature an intent to allow this to be done at the vocational technical school level only where the veteran determines to attend a state institution rather than a private business college or similar vocational institution.
            The second part of your question pertaining to § 2 (2), supra, is whether the language of this subsection is sufficient to authorize the various state institutions of higher education to which it refers to accept, in lieu of immediate payment of tuition, a certification from the state treasurer that a veteran enrolled therein is entitled to a bonus credit to be paid by the state when funds become available.
            In responding to this question let us first note, again, the lack of any differentiation within the statute between its utility in the case of a veteran attending a public institution and one who is attending a private institution.  Clearly, the legislature intended to allow a qualified Viet Nam veteran to use his bonus for tuition credits at either type of institution ‑ notwithstanding the basic proposition that state institutions, unlike their private counterparts, are wholly dependent upon the legislature for their legal authority to engage in a program such as this.  Accord, State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  Moreover, in enacting this 1972 veterans' bonus law, the legislature must be presumed to have been aware of the scope of its own prior legislation with regard to the requisite times for payment of tuition on the part of students enrolled in our state colleges, universities and community colleges.  Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969).3/   Accordingly, the legislature must have intended by implication to grant to the various state higher educational  [[Orig. Op. Page 7]] institutions which a qualified Viet Nam veteran might choose to attend under the act the necessary authority to defer the receipt of his tuition payment until moneys become available in the veterans' compensation fund with which to reimburse such institutions for, in effect, allowing the veteran to attend school on credit.4/
             We agree, however, with your characterization of an institution's participation in this program ‑ whether it be a state or private higher educational institution ‑ as being optional rather than mandatory.  Not only does the concluding clause of subsection (2), supra, suggest this result by its references to "institutions of higher education entering into this program" (suggesting that some may choose not to do) but, in addition, we think this interpretation is most certainly required in the case of private institutions on constitutional due process grounds.  As for public institutions, while the same constitutional objections would not lie against mandatory participation on the part of these institutions, we would simply again note the lack of any statutory distinction between the status of public and private educational institutions within the context of the act.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Each of these projections is based upon (a) the anticipated total volume of monthly cigarette excise tax revenues during the remainder of the biennium; and (b) computations of the dollar amounts necessary for debt service on the bonds to which the compensation fund is subordinate during this period.  With regard to this letter factor, we are advised that the last of the previously issued World War II and Korean veterans' bonus bonds were paid off on January 2, 1972; that sufficient sums of cigarette excise tax revenues thus far received during 1972 have been placed in the bond redemption funds for the 1957 and 1959 school construction bond issues currently outstanding for which these revenues have been pledged; and, finally, that as of November, 1972, all of the 1957 school construction bonds will have been redeemed ‑ leaving only the 1959 school construction bonds still outstanding as we enter the calendar year 1973.
2/This preceding paragraph reads, in full, as follows:
            "Whenever the receipts into the war veterans' compensation bond retirement fund during any year exceed the annual amounts required for debt service, the balance shall be transferred by the state treasurer to the state general fund, and whenever there has accumulated in the war veterans' compensation bond retirement fund a sum in excess of the amount required in any year, as determined by the state finance committee, to meet obligations during that year for bond retirement and interest, the state treasurer shall transfer from such fund to the state general fund all money in excess of such amount."
3/Typical of the existing statutory provisions governing this matter is RCW 28B.40.370, relating to the several four-year state colleges; see, also, RCW 28B.20.720 governing the University of Washington, RCW 28B.30.740 pertaining to Washington State University, and RCW 28B.50.360 which relates to the community colleges.
4/In so far as the constitutionality of this procedure under Article VIII, § 5 of our state constitution (prohibiting loans or gifts of state credit or funds) is concerned, we would regard these extensions of credit to a qualified veteran for tuition purposes as being no more violative of this section than are the bonus payments themselves.  See, Gruen v. State Tax Commission, supra, sustaining the World War II veterans' bonus bill and State ex. rel. Hart v. Clausen, 113 Wash. 570, 194 Pac. 793 (1921), upholding its earlier, World War I counterpart ‑ chapter 1, Laws of 1920.  In addition, from the standpoint of a participating state educational institution, see, Wn. Nat. Gas Co. v. Public Until. Dist., 77 Wn.2d 94, 459 P.2d 633 (1969), holding that the constitution does not forbid the state, pursuant to a valid contract, from rendering some part of its performance first, before payment or other reciprocal performance is obtained from the other party.