CONSTITUTIONAL LAW - CONSTITUTIONAL AMENDMENTS - INITIATIVE AND REFERENDUMS - STATE BOND ISSUES WITHIN ARTICLE VIII, § 3 - MEANING OF GENERAL ELECTION - AUTHORITY OF LEGISLATURE

CONSTITUTIONAL LAW - CONSTITUTIONAL AMENDMENTS - INITIATIVE AND REFERENDUMS - STATE BOND ISSUES WITHIN ARTICLE VIII, § 3 - MEANING OF GENERAL ELECTION - AUTHORITY OF LEGISLATURE.

The legislature may constitutionally enact legislation designating the Tuesday after the first Monday of November of every odd-numbered year as a general state election date on which (1) constitutional amendments, initiatives, referendums and state bond issues (Article VIII, § 3) ready for submission, will be submitted to the qualified voters of the entire state for their approval or rejection; (2) school directors will be elected by the qualified voters throughout the entire state; and (3) city and other public officers specified in RCW 29.13.020 will be elected by the qualified voters entitled to vote on such offices.

                                                              - - - - - - - - - - - - -

                                                                 January 18, 1967

Mr. James M. Dolliver
Administrative Assistant
to the Governor
Legislative Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1967 No. 2

Dear Sir:

            This is written in reply to your request for an opinion of this office on a question which we paraphrase as follows:

            May the legislature constitutionally enact legislation designating the Tuesday after the first Monday in November in every odd-numbered year, (the date presently fixed by RCW 29.13.020 as a common election date for school directors and certain other public officers) as a general state election at which all constitutional amendments, initiatives, referendums and state bond propositions ready for submission to the voters (for their approval or rejection) will be submitted?

            We answer your question in the affirmative, reaffirming the conclusion stated in AGO 59-60 No. 15, a copy of which is enclosed.  It is our opinion that the only limitation upon the legislature, in so far as the submission of all state measures to the people is concerned, is that they be submitted  [[Orig. Op. Page 2]] at a general rather than at a special election;1/ that is, an election which is (1) state wide [[statewide]]; (2) regularly recurs in each election or voting precinct of the state on a fixed date; (3) designated as a state general election by law; and (4) for the election of officers and/or for the ratification or rejection of measures submitted to the electors of the whole state after publication thereof required by the constitution.

                                                                     ANALYSIS

            When passing upon the constitutionality of any proposed legislative enactment, it must be borne in mind that the Washington constitution is a limitation upon the powers of the legislature, instead of a grant of powers, and therefore the legislature may enact any law not expressly or inferentially prohibited thereby.  Pac. Amer. Realty Trust v. Lonctot, 62 Wn.2d 91, 381 P.2d 123 (1963);State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958);In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955); AGO 57-58 No. 226;Yelle v. Bishop, 55 Wn.2d 286, 297, 347 P.2d 1081 (1959), and cases cited therein.

            Since the constitution does not expressly prohibit the legislature from enacting the type of legislation contemplated by your question, we must examine the various provisions of the constitution governing the manner of submission of constitutional amendments (Article XXIII, § 1); initiative and referendum (Article II, § 1, Amendment 7); and laws coming within the purview of Article VIII, § 3, to determine what, if any, restraints may arise by implication.

            It is not necessary for the purposes of this opinion to set forth the full text of the pertinent constitutional provisions.  It is sufficient simply to specify the type of election prescribed by the constitution at which the particular measures are required to be approved or rejected by the voters of this state.

             [[Orig. Op. Page 3]]

!tm1,1 !tcTYPE OF MEASURE!tc!ttTIME FOR SUBMISSION

I.  !ttCONSTITUTIONAL AMENDMENTS !tt!ih*,1"Next general election." Art. XXIII, § 1.  (Original Const. 1889)

II.         INITIATIVE

            A. To People    No specification, unless an initiative is a measure "referred to the people.  "For purposes of Art. II, § 1(d), 7th Amendment (adopted 1912), 4th sentence, (III-A below).

!tj1       By statute, initiative measures and petitions are filed at stated times before the "next general state‑wide election."  RCW 29.79.020, P. 1, 29.79.140(2).

           !ttB.  !ttTo legislature   !tt

!tj1       1. If legislature approves
!tj1          and refers to people.  "Nextregular election."  Art. II, § 1(a).  Amendment 7 (adopted 1912).

!tj1       2. If legislature rejects
!tj1          or does not act on
!tj1          initiative.        "Next ensuing regular general election."  Art. II, § 1(a), Amendment 7, (adopted 1912), cf. RCW 9.79.270.

!tj1       3. If legislature rejects
!tj1          initiative and proposes
!tj1          alternative.     "Next ensuing regular general election."  Art. II, § 1(a), 7th Amendment (adopted 112).

III. REFERENDUMS2/          A. Bills!tj1       !ih*,1"Biennial regular elections, except when the legislature shall order a special election."  Art. II, § 1(b), 7th Amendment (adopted 1912) cf. RCW 29.79.250.

            B. Measures!tj1            Same

            C. Laws authorizing
                indebtedness.!tj1      "A general election."  Art. VIII, § 3. (Original Const. 1889.)

             [[Orig. Op. Page 4]]

            It is apparent from the foregoing that the framers of the constitution used somewhat different terms to describe the election at which specific measures must be submitted to the voters of the entire state, to-wit: "A general election," "next general election," next regular election," "next ensuing regular general election," and "biennial regular elections, except where the legislature shall order a special election."

            Your question has arisen by virtue of the fact that none of the terms used is defined anywhere in the constitution.  Recognizing this fact we believe our task here is somewhat similar to the situation which confronted the supreme court inState ex rel. Ralston v. Dept of Lic., 60 Wn.2d 535, 540, 374 P.2d 571 (1962):

            ". . . we have here a situation necessitating a judicial evaluation of statutory language, and implementation thereof, in terms of purposeful legislative activity‑-a task which any reasonably prudent jurist would readily agree is usually most difficult.  The easy way would be to rely on an appropriate maxim of statutory construction, attach it to a handy, predetermined conclusion, and pronounce judgment.  It is at best a tenuous, difficult undertaking to attempt to articulate the real basis of a decision; i.e., what the conglomerate mass activity of legislators did or did not accomplish and effectuate, in terms of legal sanctions, by enacting or formalizing given language into statutory law."

            Since we are here concerned with a problem of constitutional interpretation our goal is, of course, to ascertain and give effect to the intent of the framers of our constitution and the people who adopted it.  Boeing Aircraft Co. v. R. F. C., 25 Wn.2d 652, 659, 171 P.2d 838 (1946).  In seeking such intent we must keep in mind the purpose or object sought to be accomplished and the evils, if any, sought to be prevented.  State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 143, 146 P.2d 543 (1944).  InState ex rel. State Capitol Comm. v. Lister, 91 Wash. 9, 14, 156 Pac. 858 (1916), the court has said:

            "Constitutions being the result of the popular will, the words used therein are to be understood ordinarily in the sense that such words convey to the popular mind.  The meaning to be given to the language used in such instruments is that meaning which a man of ordinary prudence and average  [[Orig. Op. Page 5]] intelligence and information would give.  Generally speaking, the meaning given to words by the learned and technical is not to be given to words appearing in a constitution. . . ."

            While the difference in terminology used to describe the "type of election" at which the respective state measures are required to be submitted to the qualified voters of the state clearly indicates that they may be submitted at elections at times other than on the date fixed by the legislature for the regular evennumbered year biennial election, (see, Article II, § 5) there is one characteristic or feature which we believe all such elections must have in common.  They must be general rather than special elections.3/   This, in our opinion, is the only limitation or restriction on the power of the legislature, in so far as your question is concerned.

            The reason why general elections were selected as the time for submission of such important state measures is expressed in State ex rel. Wiesenthal v. Denny, 4 Wash. 135, 146, 147, 29 Pac. 991 (1892).  While the court in that case was discussing submission of charter amendments under Article XI, § 10, at "a general election," the reasoning thereof is equally applicable here.  Judge Theodore Stiles (who had been a delegate to our constitutional convention of 1889), speaking for the court said:

            ". . . The constitution requires and contemplates but little of pomps or forms‑- a recommendation by the legislative authority, a publication so that all may have knowledge of the proposition, and a vote is all.  General elections were selected as the time for submission, because there ought to be a certain stability about such instruments, and the vice of non-attention to special elections is well known. . . ."  (Emphasis supplied.)

            Accordingly, to avoid the evil or "vice of nonattention to special elections" the framers required state measures to be submitted at "general elections."  In defining special election, the court in State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651 (1911), stated:

            ". . . Any election which is not regularly held for the election of officers or for some other purpose which shall come before the electors at regular fixed intervals is necessarily aspecial election. . . ."  (Emphasis supplied.)  (p. 80)

             [[Orig. Op. Page 6]]

            It would seem to logically follow that any election which is regularly held for the election of officers or for some other purpose which shall come before the electors at regular fixed intervals is a general election.  See,State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120 (1912);Robb v. Tacoma, 175 Wash. 580, 28 P.2d 327 (1933).  See, also, RCW 29.01.070, where the legislature adopted the definition of general election as stated in theRobb case.

            In several of our earlier opinions4/ we were persuaded, as we are now, by the views expressed by the supreme court of Georgia in the case of Aycock v. State, 184 Ga. 709, 193 S.E. 580 (1937).  The state of Georgia has a constitutional provision governing amendments to its constitution which is substantially the same as Article XXIII, § 1, of our constitution.  Referring to this case in our letter to the Honorable Robert Greive, State Senator, dated February 2, 1959, we said:

            ". . . In 1937 the legislature of Georgia adopted a statute providing that in addition to the general election held for the election of state officers, there was created and established a state‑wide [[statewide]]general election to be known as the June general election which would be held biennially on Tuesday after the first Monday in June beginning in June, 1937.  The act provided that all vacancies in state and county offices should be filled at the election and all constitutional amendments and referenda then ready for submission to the people should also be submitted.  A constitutional amendment was submitted to the people at an election held in June, 1937, and its validity was attacked on the ground that the June election was a special election and not 'the next general election' specified in the constitution.  The supreme court of Georgia rejected this argument and held that the June election was a general election within the meaning of the constitutional provision requiring amendments to the constitution to be submitted at the 'next general election.'  The court stated:

             [[Orig. Op. Page 7]]

            "'. . . The term "general election" was not defined, but that term, as employed, evidently contemplated an election to be held at a fixed time after a specified notice, at which all the qualified voters of the state should have an opportunity to express their choice on the question of ratification of the amendment. . . .'  (Pg. 584)"5/

             We are convinced that the type of election the framers of our constitution had in mind for state purposes is one which is (1) state wide [[statewide]]; (2) regularly recurs in each election or voting precinct of the state on a fixed date; (3) designated as a state general election by law; and (4) for the election of officers and/or for ratification or rejection of measures submitted to the electors of the whole state after publication thereof as required by the constitution.

            The policy reasons which might prompt the legislature at this time to designate the November date in the odd-numbered year as a general state election are generally recognized by the citizens of the state.  Since there is under existing law a school election held in every voting precinct of the state on this date at which every qualified voter is entitled to vote6/ there would be little added cost in connection with the regular submission of state propositions.  More importantly, this legislation will serve to somewhat "unclutter" the November even-numbered year election ballot which in recent years has been so long that it has been difficult, if not impossible, for the voter to fully apprise himself of the merits of all measures and the qualifications of  [[Orig. Op. Page 8]] all the candidates who appear on the ballot.  For example, in 1966, there were 14 state measures on the ballot in addition to the many offices and local propositions which were voted upon. Furthermore, our research has disclosed that going back to 1914, (the first even-numbered year election after the adoption of the 7th Amendment in 1912) there have generally been several but at least one state measure on every even-numbered year election ballot.  Thus, with history as our guide, it is safe to say there will in the future be state measures on every general election ballot.

            The legislation permitting submission of state measures at a general state election in the odd-numbered year in November (when such election is in fact the next general state election in point of time,) cf. Seattle School Dist. No. 1 v. Odell, 54 Wn.2d 728, 844 P.2d 715 (1959) will present every voter with the opportunity, by studying the voters' pamphlet, to be in a position of casting a more intelligent vote on the measures which will be on the ballot.  In addition, submission of the state measures at such an election would result in greater voter turnout and interest in the election of school district and municipal officers.  Borrowing a thought expressed by the court in Murphy v. Spokane, 64 Wash. 681, 688, 117 Pac. 476 (1911), the more intelligent the vote and the greater the interest taken in state measures and the election of local officers, "the greater the benefit to us and to our posterity."

            Accordingly, it is our opinion for the reasons stated herein, that the legislature may designate the Tuesday after the first Monday in November of every odd-numbered year as a general state election at which (1) constitutional amendments, initiatives, referendums and state bond issues (Article VIII, § 3) ready for submission, will be submitted to the qualified voters throughout the entire state for their approval or rejection; (2) school directors will be elected by the qualified voters throughout entire state; and (3) city and other public officers specified in RCW 29.13.020 will be elected by the qualified voters entitled to vote on such offices.7/   This conclusion is consistent with the views expressed in AGO 59-60 No. 15 and the conclusion stated therein is hereby affirmed.

             [[Orig. Op. Page 9]]

            In arriving at our conclusion we have considered the very recent case ofPlummer v. Gaines, 70 W.D.2d 51 [[70 Wn.2d 53]](Dec. 22, 1966).  We are aware that some of the general statements made therein, if taken out of context, could support an argument that a "general election" for the submission of state measures means the evennumbered year biennial election referred to in Article VI, § 8.  However, a careful analysis of the facts involved and the court's holding will show that that case is clearly distinguishable from the matter here under consideration.8/

             The facts before the court in thePlummer case may be briefly summarized as follows:

            A petition was filed with the board of King county commissioners under the 21st Amendment to the constitution calling for the election of freeholders to frame a "Home Rule Charter for King County."  In order to validate such a petition the constitution requires that it contain the signatures of "registered voters equal in number to ten (10) per centum of the voters ofany such county voting at the last preceding general election."

            The petition contained the signatures of approximately 28,000 registered voters.  This number was sufficient to validate the petition if the November 1965 election, held in King county pursuant to RCW 29.13.020, was the "last preceding general election" in the county.

            The court noted that the expressed purpose or object sought to be accomplished by the legislature in the enactment of RCW 29.13.020 was simply to establish a common election date for holding "all general city, town and district elections."  Therefore, the court concluded that the legislature did not intend that such election should qualify as the last preceding general election referred to in Amendment 21.

            While the record before the court did indicate certain county measures and officers were on the ballot in King county at the 1965 election, the court was concerned by the fact that there was no evidence in the record to establish what the situation was in the other 38 counties of the state.  The court said:

             [[Orig. Op. Page 10]]

            "Items 1, 4, and 6 were on all the ballots cast within the confines of King County; items 2, 3, and 5 were only on the ballots of the districts to which they pertained.  What the situation was with respect to candidates and issues in other similar elections held on November 2, 1965, in the remaining counties of the state is not revealed by the record, and it is not seriously contended that every county in the state had issues or candidates on city, town, or district ballotswhich permitted or called for all voters within the respective county to cast a ballot."  (p. 59)  (Emphasis supplied.)

            Because the record failed to disclose any uniform "county wide vote state wide" [[statewide]]on candidates and issues at the 1965 election, the court concluded the only election (under existing law) to which the controlling language of the 21st Amendment could refer was the 1964 (even-numbered year) general county election at which county officers were elected in every county throughout the state.  Article VI, § 8.  (See, also, RCW 36.16.010; RCW 36.32.040; and RCW 36.32.050, where the legislature has provided for the election of constitutionally designated county officers at the even-numbered election.)

            Article VI, § 8, provides as follows:

            "The first election of county and district officers not otherwise provided for in this Constitution shall be on the Tuesday next after the first Monday in November 1890, andthereafter all elections for such officers shall be held bi-ennially [[biennially]]on the Tuesday next succeeding the first Monday in November.  The first election ofall state officers not otherwise provided for in this Constitution, after the election held for the adoption of this Constitution, shall be on the Tuesday next after the first Monday in November, 1892, and the elections forsuch state officers shall be held in every fourth year thereafter on the Tuesday succeeding the first Monday in November."  (Emphasis supplied.)

            Whatever effect Article VI, § 8, has on the power of the legislature in respect to the establishment of a different election date or an additional election date for county officers we need not decide at this time.  Furthermore, we need not decide whether the portion of Article VI, § 8, regarding the election date of state officers "not otherwise provided for in this Constitution" can be given any reasonable meaning.  We say this because  [[Orig. Op. Page 11]] the legislature has been otherwise expressly vested with the power, by the constitution, to fix the date for the election of all constitutionally designated state officers, to-wit:

            Members of House of Representatives:

            "The next election of the members of the house of representatives after the adoption of this Constitution shall be on the first Tuesday after the first Monday of November, eighteen hundred and ninety, and thereafter, members of the house of representatives shall be elected biennially and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November,unless otherwise changed by law."  Article II, § 5.  (Emphasis supplied.)

            State Senators:

            "After the first election the senators shall be elected by single districts of convenient and contiguous territory, at the same time and in the same manner as members of the house of representatives. . ."  Article II, § 6.  (Emphasis supplied.)

            Constitutionally Created Executive Officers:

            "The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature."  Article III, § 1.  (Emphasis supplied.)

            Representatives to Congress:

            ". . . at such times and places, and in such manner,as may be prescribed by law. . . ."  (Article XXVII, § 13.)  (Emphasis supplied.)

            Judges of the Supreme Court:

            "The judges of the supreme court shall be elected by the qualified electors of the state at large at the general state election at the times and places at which state officers are elected, unless some other time be provided by the legislature. . . ."  Article IV, § 3. (Emphasis supplied.)

             [[Orig. Op. Page 12]]

            The foregoing demonstrates that the framers did not want to tie the hands of the legislature in respect to state elections.  This conclusion is further supported when reference is made to the discussion which occurred during the constitutional convention regarding the discretion vested in the legislature by Article IV, § 3, supra, to fix the date for the election of judges of the supreme court.

            In the Journal of the Washington Constitutional Convention of 1889, we find the following:

            "For: Turner, Kinnear, and Sharpstein agreed that the future wealth of the state might allow separate elections; they felt that the Legislature shouldn't have its hands tied.

            "Against: Gowey thought that the people could change by amendment if they wanted.  Sturdevant, Dyer, and Lindsley didn't want the Legislature to meddle with the court under any circumstances.  Comegys feared that this amendment might be interpreted to allow the appointment of judges.

            "Motion: Shoudy moved to strike the words, 'until otherwise provided by law' in the last sentence.

            "Action:Motion lost."  (Emphasis supplied.)  (pp. 602-3)

            Since the legislature is not restrained by Article VI, § 8, from establishing new general state election dates for the election of state officers, we cannot see how it could be reasonably argued that the section somehow limits the authority of the legislature in respect to the establishment of a general election date for the submission of state measures.9/   In leaving such matters in the hands of the legislature the framers made it possible for the legislature to meet the changing conditions and the needs of a growing state.

            In this regard, it is significant to note the supreme court of this state has held that whenever possible the provisions of our constitution should be construed so as "to meet new or changed conditions."  InState ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 147, 247 P.2d 787 (1952), the court made reference to the following:

             [[Orig. Op. Page 13]]

            "InMcColloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579, 601, we find the classic statement by Chief Justice Marshall:

            "'A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.  It would, probably, never be understood by the public.  It nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves . . . In considering this question, [of the extent of Congress' powers] then, we must never forget that it is a constitution we are expounding.'

            "And a further significant statement at p. 415, to the following effect:

            "'This provision [for the powers of Congress] is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.'

            "To the same effect see Justice Story's opinion in Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97, 103.

            "InState ex rel. Linn v. Superior Court for King County, 20 Wn.2d 138, 146 P.2d 543, we said at p. 145:

            "'Constitutions are designed to endure through the years, and constitutional provisions should be interpreted to meet and cover changing conditions of social and economic life . . .

            "'"Although the meaning or principles of a constitution remain fixed and unchanged from the time of its adoption, a constitution must be construed as if intended to stand for a great length of time, and it is progressive and not static.  Accordingly,it should not receive too narrow or literal an interpretation, but rather the meaning given it should be applied in such a manner as to meet new or changed conditions as they arise."  16 C.J.S., Constitutional Law, pp. 49-50, § 14.'"  (Emphasis supplied.)

            Thus, by way of summary, the vital distinctions to be drawn  [[Orig. Op. Page 14]] between the instant case and thePlummer case are:

            (1) InPlummer the record did not disclose any uniform county-wide vote state wide [[statewide]]on candidates or issues at the November 1965 election‑-Here, at the designated state general election there would be a state vote state wide in every voting precinct at which every qualified voter would have the right and the opportunity to pass upon state measures appearing on the ballot in addition to voting on the particular public officers required to be elected under RCW 29.13.020.