Letter Opinion 1971 No. 105

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                                                               September 9, 1971
 
 
 
Honorable Doris J. Johnson
State Representative, District 16-A
737 Tacoma Place
Kennewick, Washington 99336
                                                                                          Cite as:  AGLO 1971 No. 105 (not official)
 
 
Dear Representative Johnson:
 
            This is written in response to your recent letter requesting our opinion regarding the legal effect of an apparent conflict between two statutes relating to the activities of members of the Washington State Pollution Control Hearings Board.
 
                                                                     ANALYSIS
 
            The pollution control hearings board was established by chapter 62, Laws of 1970, 1st Ex. Sess.  See, specifically, § 31, now codified as RCW 43.21B.010, which provides as follows:
 
            "There is hereby created a pollution control hearings board of the state of Washington as an agency of state government.
 
            "The purpose of the hearings board is to provide for a more expeditious and efficient disposition of appeals with respect to the decisions and orders of the department and director and with respect to all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW.
 
            The members of this board are appointed by the governor pursuant to RCW 43.21B.020, for the terms of office enumerated in RCW 43.21B.030.
 
            The particular section of this chapter to which you have first made reference is § 36, chapter 62, Laws of 1970, 1st Ex. Sess., now codified as RCW 43.21B.060, which provides as follows:
 
             [[Orig. Op. Page 2]]
            "Each member of the hearings board: (1) Shall not be a candidate for nor hold any other public office or trust, and shall not engage in any occupation or business interfering with or inconsistent with his duty as a member of the hearings board, nor shall he serve on or under any committee of any political party; and (2) shall not for a period of one year after the termination of his membership on the hearings board, act in a representative capacity before the hearings board on any matter."  (Emphasis supplied.)
 
            With this statute in mind, you have directed our attention to chapter 286, Laws of 1971, 1st Ex. Sess.  (Substitute House Bill No. 584), commonly known as the Shoreline Management Act of 1971.  You have pointed, in particular, to § 17 of this act which establishes a "shorelines hearings board" to be comprised as set forth therein:
 
            "A shorelines hearings board sitting as a quasi judicial body is hereby established which shall be made up of six members:  Three members shall be members of the pollution control hearings board; two members, one appointed by the association of Washington cities and one appointed by the association of county commissioners, both to serve at the pleasure of the associations; and the state land commissioner or his designee.  The chairman of the pollution control hearings board shall be the chairman of the shorelines hearings board.  A decision must be agreed to by at least four members of the board to be final.  The pollution control hearings board shall provide the shorelines appeals board such administrative and clerical assistance as the latter may require.  The members of the shoreline appeals board shall receive the compensation, travel, and subsistence expenses as provided in RCW 43.03.050 and RCW 43.03.060."  (Emphasis supplied.)
 
             [[Orig. Op. Page 3]]
            Because it contained an emergency clause in § 41, this act became effective on May 21, 1971, when signed into law by the governor; however, as set forth in § 42, the act also constitutes an alternative to Initiative No. 43, and thus is to be submitted to the voters of this state for their approval or disapproval at the November, 1972 state general election, in accordance with Article II, § 1 (Amendment 7) of our state constitution.
 
            The rules of statutory construction which are pertinent to your inquiry are set forth at some length in AGO 1967 No. 4 [[to Prosecuting Attorney, Thurston County on February 6, 1967]], copy enclosed.  Note, particularly, the rule enunciated in Abel v. Diking and Drainage Improvement District, 19 Wn.2d 356, 363, 142 P.2d 1017 (1943), as noted on page 5 of this opinion, that:
 
            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect.  . . ."
 
            Notably, both RCW 43.21B.060 and § 17, chapter 286, Laws of 1971, 1st Ex. Sess., supra, are mandatory in their treatment of dual office holding by a member of the pollution control hearings board; the earlier, 1970, statute clearly prohibits such dual office holding, whereas § 17 of the 1971 act equally clearly requires that three of the positions on the shorelines hearings board shall be filled by members of the pollution control hearings board.  Therefore, it is not possible to reconcile the conflict between these two statutes and give total effect to both.
 
            From this it follows, in accordance with the above‑noted rules of statutory construction, that § 17 Laws of 1971, 1st Ex. Sess., must be regarded as having impliedly amended the earlier provisions of RCW 43.21B.060 to the extent of carving out a single exception to the prohibition against dual office holding which is set forth in the 1970 enactment.  Thus, while the three  [[Orig. Op. Page 4]] members of the pollution control hearings board are still prohibited, generally, from holding any other public office, as an exception to this prohibition they are now required to serve as members of the new shorelines hearings board.
 
            Of course, because this conflict which you have noted is simply a conflict between two statutes ‑ rather than being a conflict between a statute and some limitation contained in our state constitution ‑ it is to be resolved solely on the basis of the foregoing rules of statutory construction.  Simply stated, there is nothing unconstitutional about legislation which is in conflict with some prior act of the same legislature where, as here, the later act is complete on its face and has the effect of impliedly amending or repealing the earlier enactment.  Accord, Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (11959), and cases cited therein.
 
            We trust that the foregoing explanation of the matter will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General