Letter Opinion 1972 No. 041

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                                                                   May 23, 1972

Honorable Sid Flanagan
State Representative, 13th District
Legislative Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 41 (not official)

Dear Sir:
 
            This is written in response to your request for an opinion on the following question:
 
            May the legislature propose alternative constitutional amendments relating to tax revision and submit them to the voters under a format similar to that provided for with regard to initiatives to the legislature under the 7th Amendment to the state Constitution, whereby the voters could vote first on the general question of tax revision and then, secondly, vote their preference between the two competing versions?
 
                                                                     ANALYSIS
 
            The first part of your question is clearly answerable in the affirmative.  Accord, AGO 1969 No. 23 [[to Martin J. Durkan, State Senator, December 15, 1969]], copy enclosed, in which we advised that the legislature may propose two (or more) alternative versions of a constitutional amendment relating to the same subject and submit both amendments to the voters at the same general election.  A difficulty would arise, however, if each of the competing measures were to be approved by a majority of the voters voting thereon.  Unless some indication is contained in one or the other of the measures as to which of the proposals is to control in the event that both are approved by the voters, the consequence of approval of two competing measures at the same election which are in irreconcilable conflict would, in accordance with decided cases, be failure of both amendments.  See, McBee v. Brady, 15 Ida. 761, 100 Pac. 97 (1909); Utter v. Moseley, 16 Ida. 274, 100 Pac. 1058 (1909); and In re Senate File No. 31, 35 Neb. 864, 41 N.W. 981 (1889).
 
            The over-all thrust of your immediate question is whether this possibility can be avoided in this state through the use of a format similar to that which is contained in the 7th Amendment to the Constitution with regard to initiatives to the legislature.  The critical  [[Orig. Op. Page 2]] language of this constitutional provision, which operates in those instances where the legislature has rejected a measure proposed by an initiative petition and has proposed a different one dealing with the same subject, reads as follows:
 
            ". . .  When conflicting measures are submitted to the people the ballots shall be so printed that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and secondly, as between one and the other.  If the majority of those voting on the first issue is for neither, both fail, but in that case the votes on the second issue shall nevertheless be carefully counted and made public.  If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the second issue shall be law."
 
            Our difficulty in expressing approval of a utilization of a similar procedure with regard to competing constitutional amendments is that Article XXIII, § 1 of our state Constitution, relating to amendments thereto, simply does not contemplate or provide for this situation ‑ and, of course, the 7th Amendment, supra, has nothing to do with constitutional amendments.1/   Instead, Article XXIII, § 1, specifically provides 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.  . . ."
 
            In addition, any proposed amendment which is approved and ratified ". . . by a majority of the electors voting thereon, . . ." shall become a part of the Constitution in accordance with other language expressly appearing in this section.
 
             [[Orig. Op. Page 3]]    As we explained in some detail in AGO 1969 No. 23, supra, the power of the legislature with respect to the proposal of constitutional amendments is notably different than that pertaining to the enactment of ordinary legislation.  We summarized this point at page 5 of the opinion as follows:
 
            ". . .  It is well established that the authority of a legislature to propose amendments to a state constitution ‑ such as that vested in our legislature by Article XXIII, § 1 (Amendment 37), supra ‑ is not an ordinary law-making power.  Instead it is a special and extraordinary power granted to the legislature by the people through their adoption of the basic constitution.  As such, this special power of the legislature must be strictly construed.  See, 16 Am.Jur. 2d, Constitutional Law, §§ 26, 30 (pp. 197-198, 201); and 16 C.J.S., Constitutional Law, § 9 (pp. 48-49).
 
            "This distinction ‑ and resulting difference in analytical approach ‑ was aptly described in AGO 63-64 No. 33 [[to Victor A. Meyers, Secretary of State, June 19, 1963]], copy enclosed, as follows:
 
            "'Concerning legislative power of the legislature, the rule is that the state constitution is not a grant, but a restriction on the law-making power, and the power of the legislature to enact laws is unrestrained except where it is expressly or inferentially prohibited by the state or federal constitution.  Clark v. Dwyer, 56 Wn. (2d) 425, 353 P. (2d) 941 (1960); State ex rel. Tattersall v. Yelle, 52 Wn. (2d) 856, 329 P. (2d) 841 (1958).  However, the power to initiate changes in the constitution is not considered a legislative power, but rather a special power delegated to the legislature by the constitution, and as such, the extent of the power is strictly construed.  11 Am.Jur., Constitutional Law, § 28; 16 C.J.S., Constitutional Law, § 9.'"
 
             [[Orig. Op. Page 4]]
            Thus, in proposing amendments to our state Constitution, the legislature can only proceed in the manner provided for in Article XXIII, § 1, supra, and it may not, without further authority, innovate in the manner contemplated by your question.  By way of emphasis of this point, we would conclude by directing your attention to the contrasting provisions of the amendatory article contained in the Constitution of Arizona, as discussed in the recent case of State ex rel. Nelson v. Jordan, 104 Ariz. 90, 449 P.2d 18 (1968).  After noting the line of cases cited at the outset of this opinion with regard to the consequence of voter approval of conflicting constitutional amendments, the Arizona court noted that it was not ". . . faced with such a harsh result . . ." because of the following language of Article IV, § 1 of the Arizona Constitution:
 
            "'If two or more conflicting measures or amendments to the Constitution shall be approved by the people at the same election, the measure or amendment receiving the greatest number of affirmative votes shall prevail in all particulars as to which there is conflict.'"
 
            If we had a similar provision in the amendatory article of our Constitution, then of course the approach which your question contemplates would be authorized ‑ but as of now we have no such provision.  Thus, your overall question must be answered in the negative.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
Philip H. Austin
Deputy Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/Accord, opinion dated February 20, 1970, to the secretary of state, copy enclosed.