CONSTITUTIONAL LAW - AMENDMENT - COMPENSATION OF ALL ELECTIVE AND APPOINTIVE OFFICIALS - INCREASES

CONSTITUTIONAL LAW - AMENDMENT - COMPENSATION OF ALL ELECTIVE AND APPOINTIVE OFFICIALS - INCREASES.

(1) The constitutional amendment contained in H.J.R. No. 13, which was voted upon at the 1968 general election, will become effective on the day of completion of the official canvass and issuance of the governor's proclamation, under RCW 29.62.130, confirming approval of the amendment by the voters; however, a delay of either of these events beyond the thirty-day period specified in the statute will not result in a delay of the effective date of the amendment beyond this period.

(2) The approval of H.J.R. No. 13 will entitle those public officers (including supreme and superior court judges) who, because of previous constitutional limitations, have been receiving a lesser salary during their current terms of office than that provided for by the law presently in effect henceforth to receive the salary increases provided for by existing law without further action by the legislature or other salary fixing body.

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                                                                November 8, 1968

Honorable Albert C. Bise
Administrator for the Courts
Temple of Justice
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 33

Dear Sir:

            This is written in response to your request for our opinion on two questions regarding the immediate effect, if any, which the recent apparent approval of H.J.R. No. 13 by the voters will have on the compensation payable to certain public officials, including supreme and superior court judges.  We paraphrase your questions as follows:

            (1) When does the constitutional amendment contained in H.J.R. No. 13 become effective?

            (2) Will the approval of H.J.R. No. 13 entitle those public officers (including supreme and superior court judges) who, because of previous constitutional limitations, have been receiving a lesser salary during their current terms of office than that provided for by the law presently in effect (enacted during such current terms), henceforth to receive the salary increases provided for by existing law without any further action by the legislature or other salary fixing body?

             [[Orig. Op. Page 2]]

            We answer question (1) in the manner set forth in our analysis, and question (2) in the affirmative for the reasons set forth therein.

                                                                     ANALYSIS

            The constitutional amendment contained in H.J.R. No. 13, which was considered by the voters at the recent (November 5, 1968) state general election, reads as follows:

            "The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.

            "The provisions of section 25 of Article II (Amendment 35), section 25 of Article III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed."

            This amendment was proposed by the 1967 legislature in accordance with the procedures set forth in Article XXIII, § 1 (Amendment 37) of the state constitution, which provides:1/

            "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 be come part of this Constitution, and proclamation thereof shall be made by the governor: Provided, That if more than  [[Orig. Op. Page 3]] 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."  (Emphasis supplied.)

            Question (1):  The Effective Date of H.J.R. No. 13.

            The first step to be followed, with respect to determining the effectiveness of this and the several other constitutional amendments which were voted upon at the recent election, is the conduct of the official canvass in accordance with RCW 29.62.130, which provides:

            "The votes on proposed amendments to the state Constitution, recommendations for the calling of constitutional conventions and other questions submitted to the people shall be counted, canvassed and returned by the regular precinct election officers and by the county auditors and canvassing boards in the manner provided by law for counting, canvassing and returning votes for candidates for state offices.  It shall be the duty of the secretary of state in the presence of the governor, within thirty days after any such election, to canvass the votes upon each question and certify to the governor the result thereof, and the governor shall forthwith issue his proclamation giving the whole number of votes cast in the state for and against such measure and declaring the result: Provided, That if the vote cast upon an initiative or referendum measure is equal to less than one third of the total vote cast at the election, the governor shall proclaim the measure to have failed for that reason."

            Your first question assumes that this canvass confirms what we may now describe as the apparent approval of H.J.R. No. 13 by the  [[Orig. Op. Page 4]] voters,2/ and asks for our opinion as to the effective date of the particular constitutional amendment contained therein as quoted above.

            Research has revealed only one case in which the Washington supreme court has expressed itself as to the effective date of a constitutional amendment adopted under Article XXIII, § 1 (Amendment 37), supra.  InState ex rel. Wash. Etc. v. Coe, 49 Wn.2d 849, 307 P.2d 279 (1957), the issue before the court was whether the petitions for a certain initiative (proposed law) contained enough signatures to qualify it for submission to the legislature.  In September, 1956, when the petitioners had filed their proposed initiative with the secretary of state, the 7th Amendment to the constitution, pertaining to such measures, required only 50,000 signatures.  However, at the November 6, 1956, state general election, the voters had approved an amendment to this provision which had been passed by the 1955 legislature, and which read as follows:

            "Hereafter, the number of valid signatures of legal voters required upon a petition for an initiative measure shall be equal to eight percentum of the number of voters registered and voting for the office of governor at the last preceding regular gubernatorial election. . . ."  (30th Amendment.)

            On December 6, 1956, following the official canvass of votes in accordance with RCW 29.62.130, the governor issued his proclamation declaring the amendment to be adopted and designating it as the 30th Amendment to the state Constitution.  Following this, on January 4, 1957, the petitioners presented their initiative petitions to the secretary of state.  He, in turn, rejected them for the reason that although they contained a sufficient number of signatures (85,000) to qualify the proposed initiative for submission to the legislature under the terms of the 7th Amendment, this number of signatures was insufficient under the more stringent requirements of the 30th Amendment.

            Based on these facts, the court stated the issue raised by the petitioners' application for a writ of mandamus as follows:

             [[Orig. Op. Page 5]]

            ". . . What was the law on January 4, 1957, when the petitions were offered for filing and rejected? . . ."

            The court then answered this question by saying:

            "The thirtieth amendment became effective upon the proclamation of December 6, 1956, and was in effect on January 4, 1957, when the petitions were offered for filing.  By the plain terms of the thirtieth amendment, the seventh amendment is superseded and has been without force since December 6, 1956.

            ". . .

            "The petitions, when offered for filing January 4, 1957, did not contain the number of signatures required by the thirtieth amendment; consequently, the secretary of state could not accept them for filing, and his action in this respect was correct. . . ."

            In analyzing this decision, it is important to note that once the court decided that the sufficiency of signatures on the petitions was governed by the constitutional provision in effect at the time they were offered to the secretary of state for filing, it became immaterial to the holding of the case whether the 30th Amendment had become effective only upon issuance of the governor's proclamation on December 6, 1956, or whether it had, in reality, became effective thirty days earlier, on November 6, 1956, when it was actually approved by the voters.  As a matter of fact, a review of the record reveals that the parties had mutually agreed upon December 6, 1956, as the effective date of the amendment and had set forth this proposition as a part of their statement of agreed facts.

            Thus, most certainly, the court's statements in this case as to the effective date of the amendment cannot be regarded as an actual holding on the abstract question of when a constitutional amendment becomes effective in this state.  However, as we shall now see, the court's acceptance of the date of the governor's proclamation as the effective date of this particular amendment was fully consistent with the rule to be derived from the only cases we have found from other jurisdictions having essentially the same provision in the amendatory article of their constitutions as we have in ours with respect to gubernatorial proclamation of the adoption of a constitutional amendment.

             [[Orig. Op. Page 6]]

            Our examination of the amendatory articles of other state constitutions has revealed three different types of provisions with respect to the manner in which a proposed constitutional amendment formally becomes a part of a state's constitution.  The first, and by far the most numerous, type of provision contains no reference to any sort of gubernatorial proclamation at all.  See, for example, the following:  Ariz. Const. Art. XXI, § 1; Cal. Const. Art. XVIII, § 1; Colo. Const. Art. XIX, § 2; Ida. Const. Art. XX, § 1; Ind. Const. Art. XVI, § 1; N.M. Const. Art. XIX, § 1; N.D. Const. Art. XV, § 1; Okla. Const. Art. XXIV, § 1; S.D. Const. Art. XXIII, § 2; Utah Const. Art. XXIII, § 1; Wisc. Const. Art. XII, § 1; Wyo. Const. Art. XX, § 1; Del. Const. Art. XVI, § 1; Ark. Const. Art. XIX, § 22; Ohio Const. Art. XVI, § 1; Fla. Const. Art. XVII, § 1; and last, but not least, U.S. Const. Art. V, § 1.  In jurisdictions having this type of amendatory article, it is uniformly held that a constitutional amendment adopted thereunder is effective as of the date of the election at which the amendment is approved in the absence of some sort of a delayed effective date spelled out in the amendment itself.  See,State ex rel. O'Connell v. Duncan, 108 Mont. 141, 88 P.2d 73 (1939); State v. Anderson, et al., 35 W.W. Harr. 407 (Delaware) 166 Atl. 662 (1933); Mining Co. v. Secretary of State, 82 Mich. 573, 47 N.W. 25 (1890); Matheny v. Independence County, 169 Ark. 925, 277 S.W. 22 (1925);State ex rel. McNamara v. Campbell, 94 Ohio St. 403, 115 N.E. 29 (1916);Perry v. Consolidated Special Tax School Dist. No. 4, 89 Fla. 271, 103 So. 639 (1925); and Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921).  For examples of delayed effective dates, see, Coulter v. Dodge, 197 Ark. 812, 125 S.W.2d 115 (1939); and People v. Draper, 134 Cal.App. 787, 22 P.2d 604 (1933); cf.McBee v. Brady, 15 Ida. 761, 100 Pac. 97 (1909), in which the court refused to recognize a delayed effective date which was spelled out in a separate act of the legislature rather than in the proposed constitutional amendment itself.

            At the other end of the spectrum are amendatory articles which state, in clear and certain language, that a constitutional amendment approved by the voters shall be in effect only from the date of proclamation of the adoption thereof by the governor.  This type of provision appears in Article XVII, § 1 of the Oregon Constitution and in Article III, § 4 of the Nebraska Constitution, and has been given full force and effect by the courts of both of these states.  See,State v. Hecker, 109 Ore. 520 [[109 Or. 520 or 109 Oreg. 520]], 221 Pac. 808 (1923);Phy v. Wright, 75 Ore. 428 [[75 Or. 428 or 75 Oreg. 428]], 146 Pac. 138 (1915); and Swanson v. State, 132 Neb. 82, 271 N.W. 264 (1937).

             [[Orig. Op. Page 7]]

            The third type of amendatory article which our research has revealed is unlike the first in that it contains some reference to a gubernatorial proclamation of the adoption of a proposed constitutional amendment, but it is also unlike the second type in that it does not specifically say that the substantive amendment shall not take effect until issuance of this proclamation.  This, of course, is the kind of amendatory article we have in our state, in Article XXIII, § 1 (Amendment 37), supra, to the extent that this provision contains the following language:

            ". . . 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: . . ."

            So far as we have been able to determine, our state shares this type of amendatory article with only two other states, Arizona and Texas.  The Arizona provision relates only to constitutional amendments proposed by the people through use of the initiative, and will be found in Article IV, Part I, § 1 (13) of the constitution of that state.3/   The Texas requirement, on the other hand, expressly applies to amendments proposed by the legislature, and reads as follows:

             [[Orig. Op. Page 8]]

            ". . . and it shall be the duty of the several returning officers of said election, to open a poll for, and make returns to the Secretary of State, of the number of legal votes cast at said election for and against said amendments; and if more than one be proposed, then the number of votes cast for and against each of them; and if it shall appear from said return, that a majority of the votes cast, have been cast in favor of any amendment, the said amendment so receiving a majority of the votes cast, shall become a part of this Constitution, and proclamation shall be made by the Governor thereof."  (Texas Const. Art. XVII, § 1.)

            The Arizona court has flatly held that a constitutional amendment submitted under its provision can only become effective upon issuance of the gubernatorial proclamation.  See,Priser v. Frohmiller, 42 Ariz. 30, 21 P.2d 927 (1933).  However, the Texas court has indicated somewhat greater sensitivity with respect to the matter.  InWilson v. State, 15 Tex. Ct. App. Rpt. 150 [[15 Texas Ct. App. 150]](1883), the court in determining the effective date of a particular substantive amendment to the Texas constitution, considered not only the constitutional provision relating to issuance of a gubernatorial proclamation but, as well, astatutory provision having to do with the canvassing of election results.  The statute required the canvass to be made on the fortieth day following the election, with the gubernatorial proclamation to be forthwith issued upon completion of this canvass.  Reading these two provisions together the court reasoned, and concluded, as follows:

            "Section 1, of Article XVII, of the Constitution, provides: 'If it shall appear from said return that a majority of the votes cast have been cast in favor of any amendment, the said amendment so receiving a majority of the votes cast shall become a part of this Constitution, and proclamation shall be made by the Governor thereof.'  Our construction of this provision is that it is the ascertained majority of the vote of the people, and not the proclamation of the Governor, which gives force and effect to amendment.  If the Governor were to neglect or refuse to issue such proclamation, the amendment would, nevertheless, be a part of the Constitution of the State, because it is the will  [[Orig. Op. Page 9]] of the people, expressed in the mode prescribed by their organic law.  It certainly never was intended that it should be within the power of the Governor thus to defeat the solemnly declared will of the people.  We are of the opinion, therefore, that as soon as the election returns were canvassed, and it was ascertained that a majority of the votes cast were in favor of the amendment, it became a part of the Constitution, and was in full force and effect from that date."4/

             In our opinion, an apt analogy exists between these Texas decisions and the situation in our own state, for (as noted at the outset) we also have a statute which specifies a time for completion of the election canvassing to be "forthwith" followed by issuance of the governor's proclamation.  Repeated for ease of reference, RCW 29.62.130 reads as follows:

            "The votes on proposed amendments to the state Constitution, recommendations for the calling of constitutional conventions and other questions submitted to the people shall be counted, canvassed and returned by the regular precinct election officers and by the county auditors and canvassing boards in the manner provided by law for counting, canvassing and returning votes for candidates for state offices.  It shall be the duty of the secretary of state in the presence of the governor, within thirty days after any such election, to canvass the votes upon each question and certify to the governor the result thereof, and the governor shall forthwith issue his proclamation giving the whole number of votes cast in the state for and against such measure and declaring the result:   [[Orig. Op. Page 10]]Provided, That if the vote cast upon an initiative or referendum measure is equal to less than one third of the total vote cast at the election, the governor shall proclaim the measure to have failed for that reason."

            InState ex rel. Wash. Etc. v. Coe, supra, the governor did comply with the statutory requirement that his proclamation be issued forthwith upon completion of the canvass i.e., on December 6, 1956, thirty days after the election of November 6, 1956.  Hence, the court's acceptance of December 6, as the effective date of the 30th Amendment in that case was fully in accord with the rule to be deduced from the Texas decisions.

            Likewise, if the governor's proclamation of the adoption of the constitutional amendment contained in H.J.R. No. 13, is issued in accordance with this statute, that, in our opinion, will determine the effective date of the amendment.  However, in the event that the proclamation is, for any reason, delayed beyond the statutory thirty-day canvass period, we would conclude, in accordance with the reasoning of the Texas court, that such delay would not result in any postponement of the effective date of the amendment beyond this statutory period.

            By the same token, under the Texas court's reasoning, a delay in completion of the canvass itself, beyond the statutory thirtieth day, should not result in any postponement of the effective date of the amendment beyond that day.  Conversely, if both the canvass and issuance of the proclamation occur before this thirtieth day, it would follow, under the statute, that the amendment would be effective on the date that both of these events occur.

            Question (2):  The Immediate Effect of H.J.R. No. 13.

            Your second question makes reference to those public officers (including supreme and superior court judges) who have by reason of previous constitutional limitations been receiving a lesser salary during their current terms of office than that provided for by the law presently in effect (enacted during said current terms of office).  You ask:

            Will the approval of H.J.R. No. 13 entitle those officers henceforth to receive the salaries provided for by existing law without any further action by the legislature or the salary fixing body?

             [[Orig. Op. Page 11]]

            We shall commence our consideration of this question by noting the several constitutional provisions relating to mid-term pay raises for public officials which were in effect prior to the adoption of the amendment contained in H.J.R. No. 13.  There were a total of five such provisions in the constitution prior to the adoption of this amendment, and they read as follows:

            Article II, § 25 (Amendment 35):

            ". . . nor shall the compensation of any public officer be increased or diminished during his term of office. . . ."

            Article III, § 25:

            ". . . The compensation for state officers shall not be increased or diminished during the term for which they shall have been elected. . . ."

            Article IV, § 13:

            ". . . The judges of the supreme court and judges of the superior courts shall severally at stated times, during their continuance in office, receive for their services the salaries prescribed by law therefor, which shall not be increased after their election, nor during the term for which they shall have been elected. . . ."

            Article XI, § 8:

            ". . . The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election, or during his term of office; . . ."

            Article XXVIII, § 1 (Amendment 20):

            ". . . The compensation of any state officer shall not be increased or diminished during his term of office, . . ."

            Manifestly, these several provisions only apply to public officers, state officers, supreme and superior court judges,  [[Orig. Op. Page 12]] and county and other municipal officers serving fixed terms as distinguished from those officials serving for indefinite periods at the discretion of the appointing authority.  However, as to those officials serving fixed terms, the operation of these constitutional prohibitions against mid-term pay increases had the effect of assigning the specific salary provided for by law at the commencement of a term (or, in the case of supreme and superior court judges and local governmental officials, as of the date of their election to serve such a term) as the only salary payable during the entire period of that term irrespective of whether the same official who commenced the term continued to serve throughout its entire length.  See,State ex rel. Hovey v. Clausen, 117 Wash. 475, 201 Pac. 770 (1921);State ex rel. Henneford v. Yelle, 12 Wn.2d 434, 121 P.2d 948 (1942); andState ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958).

            However, as is illustrated by the first of these three cited cases, this operational effect of the constitutional provisions in question did not mean that the legislature or other salary fixing authority could not, from time to time, enact laws increasing the compensation assigned to the various public officers covered by these provisions.  Rather, the constitutional limitations merely meant that those persons occupying an office whose term commenced prior to the effective date of the pay raise were, in effect, personally ineligible to receive the pay raise for their services rendered at any time during the remainder of that term.5/

             [[Orig. Op. Page 13]]

            With this description of the operational effect of the previous constitutional provisions in mind, let us now again look at the language of the constitutional amendment contained in H.J.R. No. 13.  This amendment reads as follows:

            "NEW SECTION. Article XXIX, section 1.  The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.

            "The provisions of section 25 of Article II (Amendment 35), section 25 of Article  [[Orig. Op. Page 14]] III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed."

            Next, for illustrative purposes, let us also set forth the material statutory provisions relating to the salaries of supreme court judges.

            Under the provisions of RCW 2.04.090, as that code section read until amended by the 1965 legislature, each judge of the supreme court was entitled to ". . . receive an annual salary of $20,000: . . ."  By the enactment of § 1, chapter 127, Laws of 1965, Ex. Sess., the quoted language of this statute was amended to read "Each judge of the supreme court shall receive an annual salary of twenty-seven thousand five hundred dollars, . . ."6/