FOREST FIRE PATROL ASSESSMENTS

FIRE ‑- FOREST ‑- FOREST FIRE PATROL ASSESSMENTS

In the absence of further legislative action, § 87, chapter 195, Laws of 1973, 1st Ex. Sess., prescribes the rate for fire patrol assessments described in RCW 76.04.360 for the current year 1975 and subsequent calendar years.

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                                                                 January 31, 1975

Honorable John Martinis, Chairman
Natural Resources Committee
Room 401, House Office Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1975 No. 9

Dear Sir:

            Reference is made to your recent request for an opinion concerning the relationship between two statutes passed by the legislature in 1973: chapters 182 and 195, Laws of 1973, 1st Ex. Sess.  We paraphrase the issue raised by your inquiry as follows:

            In the absence of further legislative action will § 1, chapter 182 or § 87, chapter 195, Laws of 1973, 1st Ex. Sess., prescribe the rate for fire patrol assessments described in RCW 76.04.360 for the calendar year 1975 and subsequent calendar years?

            For the reasons set forth in our analysis it is concluded that such rates will be governed by § 87, chapter 195, Laws of 1973, 1st Ex. Sess.

                                                                     ANALYSIS

            In April, 1973, two laws amending RCW 76.04.360 were passed by the legislature and, upon signature by the governor, both were filed with the Secretary of State on the same day, April 26.  An examination of the engrossed bills on file with that office reveals that Senate Bill No. 2790 (chapter 182) was filed at 11:10 a.m. and House Bill No. 186 (chapter 195) at 11:23 a.m.  The earlier senate bill was passed on April 14 by both houses, one day prior to their passage of the later house bill.

            For ease of reference we here set forth those portions of these amendatory statutes which are pertinent to the issued raised in your inquiry.  Thus, the initial paragraphs of § 1, chapter 182, provide:

             [[Orig. Op. Page 2]] "If any owner of forest land neglects or fails to provide adequate fire protection therefor as required by RCW 76.04.350, the department shall provide such protection therefor, notwithstanding the provisions of RCW 76.04.520, at a cost to the owner of not to exceed nine cents an acre per year on lands west of the summit of the Cascade mountains and seven cents an acre per year on lands east of the summit of the Cascade mountains:  Provided, That for the calendar years 1973 and 1974 the cost to the owner for such protection shall be eighteen cents an acre per year on lands west of the summit of the Cascade mountains and fourteen cents an acre per year on lands east of the summit of the Cascade mountains.  During said calendar years the legislative committees on natural resources shall study the costs of forest fire protection to determine the ratio of financial support to be borne by the state to that of the forest land owner.

            "The findings of the legislative committees on natural resources shall be considered when establishing the forest patrol assessment for the ensuing biennium."

            In contrast, the first paragraph of § 87, chapter 195, states:

            "If any owner of forest land neglects or fails to provide adequate fire protection therefor as required by RCW 76.04.350, the department shall provide such protection therefor, notwithstanding the provisions of RCW 76.04.520, at a cost to the owner of not to exceed eighteen cents an acre per year on lands west of the summit of the Cascade mountains and fourteen cents an acre per year on lands east of the summit of the Cascade mountains."

            A comparison of the remaining provisions of § 1, chapter 182 and § 87, chapter 195, reveals that the language in both statutes is identical.  Ostensibly, both acts provided for the same rate of assessment for the calendar years 1973 and 1974.  However, § 154 of chapter 195 contained a proviso stating that § 87, with which we are  [[Orig. Op. Page 3]] here concerned (together with certain other sections) would not take effect until January 1, 1974.  It thus can readily be seen that chapter 182 stipulated reduced assessment rates for years subsequent to 1973 and 1974 while chapter 195 provides that the governing rates for these later years should continue to be the same as those imposed for the 1973-1974 biennium.

            In addition, provision was made in chapter 182 for a cost study by the legislative committees on natural resources during 1973-1974 with consideration to be given to any resulting committee findings in any later revisions in rates of assessment which might thereafter be made.  No similar study was ordered by the terms of chapter 195, nor was action by a subsequent legislature continuing or revising the 1973-1974 rate of assessment implied by the here pertinent section of the chapter.

            The rule for interpreting a code section or a section of the session laws which has undergone amendment more than once in the same legislative session is now prescribed by statute.  RCW 1.12.025, which was enacted by § 1, chapter 162, Laws of 1955, provides as follows:

            "If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each amendment without reference to the others, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control:  Provided, That if one or more extraordinary sessions of the same legislature shall follow any regular session, this rule of construction shall apply to the laws enacted at either, both, any, or all of such sessions."

            Thus, to the extent of any conflict between § 1, chapter 182 and § 87, chapter 195, the later will, according to this statute, control.

            In applying this 1955 legislative directive to these two 1973 amendments to RCW 76.04.360, we have already  [[Orig. Op. Page 4]] noted that there is no conflict in the two amendments with respect to the rates of assessment for 1973 and 1974.  And, while chapter 182 provided for a study of the costs of forest fire protection for purposes of later legislation whereas chapter 195 contemplated no such study, this point of conflict now appears moot ‑ since the period for any such study has in any event expired.1/   Moreover, we understand the concern of your inquiry not to involve this issue but, instead, to involve the interpretation to be given now to RCW 76.04.360 with respect to the applicable rate of assessment for the calendar year 1975 and subsequent years.

            On this issue there is a clear inconsistency between chapter 195 and 182.  The earlier act, by itself, would have resulted in a reduction in the assessment rates to their previous lower levels while the later statute, chapter 195, provided for a continuation of the 1973-1974 rate structure in subsequent years.  An application of the rule set forth in RCW 1.12.025,supra, therefore requires our conclusion that chapter 195 governs the resolution of that issue with which you are concerned.

            In addition, this same result is also dictated by the express provisions of § 155, chapter 192 (the later act).  This section provides that:

            "Sections 135 through 152 of this 1973 amendatory act shall apply to tax levies made in 1973 for collection in 1974, and sections 1 through 134 shall apply to tax levies made in 1974 and each year thereafter for collection in 1975 and each year thereafter."

            Section 87,supra, is, of course, one of those sections to which the second clause of this section refers.

             [[Orig. Op. Page 5]]   It has, nevertheless, been suggested that a contrary result should be reached because of the presence in § 2 of chapter 182 of an emergency clause.  Reliance is placed on a line of cases in which our court has held that where two conflicting acts dealing with the same subject matter have been adopted by the same session of the legislature, the one containing an emergency clause will prevail in the absence of a clearer showing of the legislative intent to the contrary.  State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 131 P.2d 943 (1942).  See alsoHeilig v. Puyallup City Council, 7 Wash. 29, 34 Pac. 164 (1893);Whitfield v. Davies, 78 Wash. 256, 138 Pac. 883 (1914);Spokane County v. Certain Lots in Spokane, 153 Wash. 462, 279 Pac. 724 (1929).

            Only the first of these four cases, however, involved a situation where both acts involved attempted to amend the same section of an earlier session law.2/ Furthermore, all of them were decided long prior to the enactment of RCW 1.12.025 by § 1, chapter 162, Laws of 1955.  And finally, in this case both of the amendments involved were contained in acts having an emergency clause ‑ although, admittedly, the clause in chapter 195 (see, § 154) did not have the effect of making § 87,supra, immediately effective.

            In our view, the legislature's enactment of RCW 1.12.025 to cover the special problem which is raised  [[Orig. Op. Page 6]] by your inquiry supplanted the rules which were previously followed by the court.  The rationale for the judicial rule of interpretation was a presumption that the legislature, by including an emergency clause in one of the acts adopted, considered such legislation "more clearly and pointedly" than another enactment; i.e., it was more concerned with that particular act and thus was to be deemed to have intended the act containing the emergency clause to govern in the event of a conflict.  Heilig v. Puyallup City Council, supra.  In enacting RCW 1.12.025, however, the legislature has replaced that judicial rule of construction with a different presumption of legislative intent.

            We trust that this opinion will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

LELAND T. JOHNSON
Assistant Attorney General