MOTOR VEHICLES - LICENSES - OPERATORS - AUTHORITY OF DIRECTOR OF LICENSES TO PRESCRIBE VISION QUALIFICATIONS HIGHER THAN THOSE PRESCRIBED IN RCW 46.20.050

MOTOR VEHICLES - LICENSES - OPERATORS - AUTHORITY OF DIRECTOR OF LICENSES TO PRESCRIBE VISION QUALIFICATIONS HIGHER THAN THOSE PRESCRIBED IN RCW 46.20.050.

The director of licenses may not prescribe visual acuity qualifications higher than those prescribed in RCW 46.20.050 as a condition precedent to the issuance of a motor vehicle operator's license.

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                                                                  March 25, 1960

Honorable Louise S. Taylor
Director of Licenses
General Administration Building
Olympia, Washington                                                                                      Cite as:  AGO 59-60 No. 108

Dear Mrs. Taylor:

            By letter dated February 16, 1960, you requested the opinion of this office on certain questions which we paraphrase as follows:

            (1) Does the enactment of § 2, chapter 284, Laws of 1959 amending RCW 46.20.130, amend or repeal by implication RCW 46.20.050?

            (2) May the director of licenses prescribe visual acuity qualifications higher than those prescribed in RCW 46.20.050 as a condition precedent to the issuance of a motor vehicle operator's license?

            We answer both questions in the negative.

                                                                     ANALYSIS

            Question 1:

            Prior to amendment by the legislature in 1959, § 57, chapter 188, Laws of 1937, as amended by § 1, chapter 151, Laws of 1943, (cf. RCW 46.20.130) provided in pertinent part as follows:

             [[Orig. Op. Page 2]]

            "Vehicle operator's license examinations shall be conducted in the manner prescribed by the Director of Licenses upon the following matters:

            "(1) A physical examination which shall consist of: . . .

            "(b) General vision. -This examination shall be conducted with the use of theSnellan Vision Chart or other vision determining device of the same standard.  Such test shall be conducted with the naked eye, each separately and with both eyes.  In the event that vision is deficient and does not meet the requirements of this chapter but vision has been corrected with the use of glasses, similar examination for vision shall be made with glasses and the result thereof noted.  All such vision tests shall be made with not less than thirty (30) foot-candle illumination;

            "(c) Color blindness;" (Emphasis supplied)

            That portion of the statute quoted above was amended by § 2, chapter 284, Laws of 1959, to read in part:

            "The director shall prescribe the content of the vehicle operator's license examinationand the manner of conducting the examination, which shall include:

            "(1) Atest of the applicant's eyesight, his ability to understand highway signs regulating, warning, and directing traffic, and his knowledge of the traffic laws of this state;" (Emphasis supplied)

            In making this amendment the legislature made no reference to § 46, chapter 188, Laws of 1937, as amended by § 6, chapter 182, Laws of 1939, (cf. RCW 46.20.050) which reads in part as follows:

            "The Director of Licenses shall not issue a vehicle operator's license to any person whose vision is not twenty-fifty (20/50) or better, with either eye or both eyesaccording to the test for vision as in this chapter provided:Provided, Any person whose naked vision is less than twenty-fifty (20/50) with either or both eyes but whose vision has been corrected to twenty-fifty (20/50) or better by the use  [[Orig. Op. Page 3]] of glasses may be issued a conditional vehicle operator's license, conditioned that such person may operate a motor vehicle only when wearing glasses which will correct his vision to meet the requirements of this section, which condition shall be noted on the vehicle operator's license of such person and it shall be unlawful for such person to operate a motor vehicle upon any public highway of this state unless such person is at the time complying with such condition: . . ."  (Emphasis supplied)

            Because the amendatory act of 1959 did not refer to RCW 46.20.050 doubt has arisen as to whether by removing the "Snellan Vision Chart or other vision determining device of the same standard" as the examination to be conducted for testing general vision (substituting therefor the requirement that the operator's license examination shall include "a test of the applicant's eyesight") our legislature has impliedly amended or repealed that portion of RCW 46.20.050 which, subject to the provisos therein, prohibits the director of licenses from issuing "a vehicle operator's license to any person whose vision is not twenty-fifty or better."

            In resolving this question we are guided by the familiar rule of statutory construction 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.'"

            Tacoma v. Cavanaugh, 45 Wn. (2d) 501, 503, 275 P. (2d) 933 (1954);State v. Becker, 39 Wn. (2d) 94, 97, 234 P. (2d) 897 (1951); Abel v. Diking & Drainage Improvement District No. 4, 19 Wn. (2d) 356, 363, 142 P. (2d) 1017 (1943).

            Applying this rule to the statutes under consideration, it is our opinion that RCW 46.20.050 has not been repealed by implication.  We believe that comparison of the pertinent sections before and after the 1959 amendment of RCW 46.20.130 impels this conclusion.

             [[Orig. Op. Page 4]]

            Prior to the 1959 amendment of RCW 46.20.130, supra, it was the duty of the director of licenses to prescribe only themanner in which vehicle operator's license examinations were to be conducted.  The matters upon which the examination was to be conducted were defined with particularity in the statute itself.  With respect to vision, subsections (b) and (c) above quoted required a test of general vision and color blindness respectively.  Subsection (b) also limited the director in deciding the manner in which visual examinations were to be conducted by prescribing specifically the "Snellan Vision Chart or other vision determining device of the same standard."

            Subsequent to the 1959 amendment of RCW 46.20.130 the director was vested not only with the duty of prescribing the manner of conducting operators' license examinations, but also the duty of prescribing the content of such examinations.  But this latter, additional responsibility was not unlimited, for the legislature specifically required a "test of the applicant's eyesight."  With respect to the visual examination the legislature merely eliminated thenecessity of conducting the examination in the particular manner it had theretofore prescribed, viz., "with the use of theSnellan Vision Chart or other vision determining device of the same standard."

            Nowhere in RCW 46.20.130, either before or after the 1959 amendment, werestandards prescribed which would guide the director in determining whether a particular applicant had successfully passed the required examination.  Thesestandards were prescribed in RCW 46.20.050 unmentioned in the 1959 amendment.  We cannot logically conclude that the legislature intended the amendatory act to cover the entire subject matter contained in the two earlier sections or to be complete in itself simply because the legislature eliminated the necessity of conducting a particular examination in a particular manner.  And if it were the intention of the legislature to remove the standards it had prescribed in RCW 46.20.050 by amending RCW 46.20.130, we have been unable to find any such manifestation of intention either in the amendatory act itself or in the journals of legislative proceedings relating thereto.

            Nor do we find RCW 46.20.130 as amended, to be necessarily inconsistent with, or repugnant to, RCW 46.20.050.  While the former requires a test of vision, the latter sets the standards of visual acuity to which the director must adhere in the issuance of motor vehicle operators' licenses.  Both of these sections may and should be construed together so as to give effect to and maintain the integrity of both.  Cf.DeGrief v. Seattle, 50 Wn. (2d) 1, 11, 297 P. (2d) 940 (1956).

             [[Orig. Op. Page 5]]

            We are not unmindful of the argument that the "twenty-fifty" standard prescribed in RCW 46.20.050 had reference to the test for visual acuity prescribed in RCW 46.20.130 prior to amendment (namely, "with the use of the Snellan Vision Chart or other vision determining device of the same standard") and that since the director is no longer required to conduct the visual examination in that precise manner, the term "twenty-fifty" as used in RCW 46.20.050 has become meaningless.  This argument would perhaps be reasonable if there were several methods of testing visual acuitynot employing Snellan test types and each having a different standard of measurement.  However, it is our understanding that while there are several methods of testing visual acuity, all of those generally accepted and commonly employed are Snellan test types and produce results in terms of "twenty-twenty," "twenty-forty," "twenty-fifty," "twenty-seventy," etc.  The meaning of the latter term is simply that "with the eye being measured one can read the letters on the 70 line of the standard Snellan type chart at a distance of 20 feet."  Novak v. State Workmen's Ins. Fund, 113 Pa. Super. 555, 173 Atl. 827, 828 (1934).  Cf.Gigleo v. Dorfman & Kimiavsky, 106 Conn. 401, 138 Atl. 448, 450 (1927).

            We also understand that all methods currently employed by the director in testing visual acuity for operator's license purposes utilize Snellan test types.  No other new or different method which might produce different results is contemplated.  Accordingly, it is unnecessary to decide at this time whether the director might sometime in the future adopt some other method of testing which would produce results in terms different from but convertible to those employed in RCW 46.20.050.  We shall examine and resolve that problem when and if the necessity to do so arises.

            It is our conclusion that RCW 46.20.130, as amended, does not repeal by implication RCW 46.20.050, and that both sections should be construed together.

            Question 2:

            It is noted that the first sentence contained in RCW 46.20.050, quotedsupra, merely prohibits the director from issuing any operator's license to anyone whose vision does not meet the standards therein prescribed.  The question thus arises whether this prohibition precludes the director from increasing the standards therein to "twenty-forty" or higher, pursuant to RCW 46.20.130 as amended.

            As a means of determining legislative intent we may properly consider the maxim"expressio unius est exclusio alterius" -the expression of one thing excludes others not expressed.  DeGrief v. Seattle, supra,  [[Orig. Op. Page 6]] at p. 12.  RCW 46.20.130 does not in its terms authorize the director to establish any standard of visual acuity different from that of "twenty-fifty" prescribed by the legislature in RCW 46.20.050.

            Moreover, an examination of the provisos contained in RCW 46.20.050 appears to indicate that the legislature did not intend to delegate to the director authority to increase standards of visual acuity over and beyond those therein specified.  Perhaps this may be best illustrated by the following example:

            Assume that the director established some standard higher than twenty-fifty; for example, twenty-forty.  An applicant whose vision is corrected by glasses, successfully passes the "twenty-fifty" requirement of the statute, but cannot pass the "twenty-forty" requirement established by the director.  Except as otherwise provided, his application would be rejected on the basis of the administrative regulation, notwithstanding the fact that the legislature specifically stated that ". . . any person whose naked vision is less than twenty-fifty with either or both eyes but whose vision has been corrected to twenty-fifty or better by the use of glasses may be issued a conditional vehicle operator's license; . . ."  Obviously, the administrative regulation would have the practical effect of abrogating the legislative act.  We cannot believe that the legislature contemplated such an incongruous result.

            Accordingly, we conclude that the director is without authority under RCW 46.20.050 or 46.20.130, as amended, to prescribe standards of visual acuity higher or different from those set by the legislature in RCW 46.20.050.

            In order to avoid misunderstanding, we wish to make clear that it isnot our opinion that the director is precluded from rejecting an applicant whose visual acuity meets the standards prescribed in RCW 46.20.050, but who may by reason of some other visual defect be deemed unable to safely operate a motor vehicle upon the public highways.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. HALL
Assistant Attorney General