AGO 1972 No. 25 - Nov 30 1972
OFFICES AND OFFICERS‑-STATE‑-GOVERNOR‑-VETO POWER‑-LOTTERIES
The veto power of the governor is applicable to a bill authorizing lotteries passed by a sixty percent majority of the members of both houses of the legislature under Article II, § 24 of the state Constitution, as amended by SJR No.5, unless such bill, upon passage, is, instead, submitted to the electors as a referendum under Article II, § 1 (Amendment 7).
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November 30, 1972
Honorable Damon R. Canfield
State Senator, 8th District
1368 Upland Drive
Sunnyside, Washington 98944
Cite as: AGO 1972 No. 25
This is written in response to your recent request for our opinion on a question which we paraphrase as follows: To what extent will the governor's veto power, under Article III, § 12 of the Washington Constituion, apply to legislation authorizing lotteries enacted under the constitutional amendment which was recently adopted pursuant to voter approval of Senate Joint Resolution No. 5 at the November 7, 1972 general election?
We answer this question in the manner set forth in our analysis.
We begin by noting the several methods by which legislation (i.e., statutes) may presently be enacted under our state Constitution, together with the role of the governor in the case of each of these methods.
First, of course, under Article II, § 1 (Amendment 7)1/ a statute may be enacted by means of a bill which is passed by [[Orig. Op. Page 2]] a constitutional majority of the members of both houses of our state legislature2/ and is either approved by the governor or is allowed to become law without his signature under the following provisions of Article III, § 12:
"Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law; . . . If any bill shall not be returned by the governor within five days, Sundays excepted, after it shall be presented to him, it shall become a law without his signature, unless the general adjournment shall prevent its return, in which case it shall become a law unless the governor, within ten days next after the adjournment, Sundays excepted, shall file such bill with his objections thereto, in the office of secretary of state, who shall lay the same before the legislature at its next session in like manner as if it had been returned by the governor. . . ."
Secondly, a statute may be enacted pursuant to a bill passed by both houses of the legislature in the same manner which is vetoed by the governor under Article III, § 12, but then is [[Orig. Op. Page 3]] repassed by a two-thirds majority of both houses ‑ also as provided for in this section.
Thirdly, a statute may be enacted by a bill passed by both houses (by a simple constitutional majority) which is then referred by the legislature to the voters and is approved by them at a referendum election under Article II, § 1 (Amendment 7).
And finally, a statute may be enacted by an initiative of the people ‑ either to the legislature or to the people ‑ also under Article II, § 1 (Amendment 7) of the Constitution.
In neither of these last two instances ‑ a referendum bill or an initiative ‑ is the governor's veto power under Article III, § 12, applicable for the reason that subsection (d) of Article II, § 1 (Amendment 7) expressly states that
". . . The veto power of the governor shall not extend to measures initiated by or referred to the people. . . ."3/
Next, we turn to the provisions of Senate Joint Resolution No. 5, which was proposed by the requisite two-thirds majority of both houses of the legislature during its 1971 regular session4/ and then approved by the voters at the recent (November 7, 1972) general election. By their approval of this measure the voters have caused the provisions of Article II, § 24 of the state Constitution to be amended so as to read as follows:
"The legislature shall never grant any divorce. Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."
[[Orig. Op. Page 4]]
Of course, in the case of such measures authorizing lotteries as may be initiated by or referred to the people under this constitutional amendment, it is evident that the governor's veto power will be no more applicable to any such referendum bills or to initiatives than it is to those bills or measures when dealing with any other subject ‑ meaning that if either the third or fourth of the several methods of enacting legislation above outlined is used to authorize lotteries, the governor will not be empowered to veto this authorization. This leaves us, then, with a question as to the impact of SJR No. 5 upon the veto power of the governor under Article III, § 12, supra, in the case of a bill authorizing lotteries which is simply approved by the special sixty percent majority of the members of both houses provided for in the amendment, but is not then submitted to the voters as a referendum bill. It is our opinion that the veto powerwill apply to such a measure.
Our reasons in support of this conclusion begin with the firmly established proposition that under the provisions of Article III, § 12,no bill is to be deemed exempt from the veto simply because it deals with a certain subject; e.g., lotteries. As was recently stated by our court in State ex rel. Greive v. Martin, 63 Wn.2d 126, 133, 385 P.2d 846 (1963):
"Article 3, § 12, makes no exceptions as to the type of legislative enactment which is subject to veto. Section 12 specifically is all-inclusive in its scope. . . ."
From this it follows that in order for SJR No. 5 to be read as allowing a bill authorizing lotteries passed thereunder to become law without submission to the governor for his approval or veto, this recent express amendment to Article II, § 24 of the Constitution would have to be read as an implied amendment to Article III, § 12, as well. However, just as in the case of statutes5/ it is also well established in the case of constitutions that amendments by implication are not favored. See, 16 Am.Jur.2d, Constitutional Law, §§ 68-69, and, in particular, the following proposition as set forth in § 69 (p. 247):
". . . Distinct provisions of the constitution are repugnant to each other in such [[Orig. Op. Page 5]] a way as to be irreconcilable only when they are related to the same subject, are adopted for the same purposes, and cannot be enforced without material and substantial conflict. In such a case, if there is a conflict between a general and a special provision in a constitution, the special provision must prevail in respect of its subject matter, since it will be regarded as a limitation on the general grant, but the general provision will be left to control in cases where the special provision does not apply."
In the present instance, there is no inconsistency between the governor's veto power and the provisions of SJR No. 5. Instead, as we view it, all that this constitutional amendment does is to establish certain special voting requirements for any measures proposing to authorize lotteries. Thus, under its provisions, legislative approval of a measure authorizing a lottery will have to be by a sixty percent majority of the members of each house rather than by the simple constitutional majority which is required for the approval of other bills under Article II, § 22, supra. Alternatively, if either the referendum or initiative procedure is to be utilized, voter approval of the measure will also have to be on the basis of a ". . . sixty percent affirmative vote of the electors voting thereon . . ." rather than ". . . a majority of the votes cast thereon . . ." as provided for in Article II, § 1, subsection (d), of the Constitution.
However, nothing contained in SJR No. 5 is in any way repugnant to the general requirement of Article III, § 12, that "Every act which shall have passed the legislature shall be, before it becomes law, presented to the governor . . ." for his approval or veto. Contrast, in this regard, the provision above noted which was added to Article II, § 1 by virtue of the 7th Amendment, supra, to the effect that ". . . The veto power of the governor shall not extend to measures initiated or referred to the people. . . ."
Therefore, it is our opinion that the governor remains an [[Orig. Op. Page 6]] essential part of the lawmaking process whenever a measure authorizing lotteries is proposed to be enacted by the legislature by the ordinary process of enacting a law ‑ i.e., by the passage of a bill which does not bypass the governor through the inclusion of a referendum clause under Article II, § 1 (Amendment 7), supra.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/Legislative power, where vested.
2/See, Article II, § 22, as follows:
"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."
3/See, State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966).
4/See, Washington Constitution, Article XXIII, § 1.
5/See, e.g., Generaux v. Petit, 172 Wash. 132, 19 P.2d 911 (1933).