OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- CONSTITUTIONALITY OF LEGISLATION MAKING SUPERINTENDENT OF PUBLIC INSTRUCTION SUBORDINATE TO THE STATE BOARD OF EDUCATION

OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- CONSTITUTIONALITY OF LEGISLATION MAKING SUPERINTENDENT OF PUBLIC INSTRUCTION SUBORDINATE TO THE STATE BOARD OF EDUCATION

A statute providing that the state superintendent of public instruction shall be subordinate to the state board of education and be subject to its direction in matters pertaining to the public schools would be unconstitutional.

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                                                                 January 17, 1961

Honorable Wilbur G. Hallauer
State Senator, First District
P.O. Box 70
Oroville, Washington

                                                                                                                  Cite as:  AGO 61-62 No. 2

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Would a statute providing that the state superintendent of public instruction shall be subordinate to the state board of education and be subject to its direction in matters pertaining to the public schools, be constitutional?

            We answer the question in the negative.

                                                                     ANALYSIS

            When passing upon the constitutionality of any proposed bill we must recognize that the legislature may enact any law not expressly or inferentially prohibited by the state or Federal Constitution.  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); Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949); AGO 57-58 No. 226 [[to R. R. (Bob) Greive, State Senator on October 31, 1958]].  As our court has said many times, "the Washington Constitution is a limitation upon the powers of the legislature, instead of a grant of powers, and so far as the power of the legislature is not limited by the Constitution it is unrestrained."

             [[Orig. Op. Page 2]]

            Yelle v. Bishop, 55 Wn. (2d) 286, 297, 347 P. (2d) 1081 (1959) and cases cited therein.

            The state superintendent of public instruction is an elected constitutional officer in the executive department of the state government.  Art. III, § 1, Washington State Constitution.  In respect to the powers and duties of his office, Art. III, § 22, provides, in pertinent part, as follows:

            "The superintendent of public instruction shall have supervision overall matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. . . ." (Emphasis supplied.)

            Our court has said that: (1) It is a cardinal principle of judicial review and interpretation that unambiguous statutes and constitutional provisions are not subject to interpretation and construction.  State ex rel. Evans v. Brotherhood, Etc., 41 Wn. (2d) 133, 247 P. (2d) 787 (1952): (2) Words used in the constitution must be understood in their usual and ordinary sense.  Gruen v. State Tax Commission, supra.

            It is our opinion that the language of Art. III, § 22, supra, is plain and unambiguous and, therefore, leaves no room for construction.  The provision charges the state superintendent in the broadest and most sweeping terms with the duty of supervision "over all matters pertaining to public schools."  SeeState ex rel. Evans v. Brotherhood, Etc., supra, where the court passed upon the sweeping language of Art. II, § 24.

            The legislature may prescribe the specific duties of the office of state superintendent but it may not, because of the limitation contained in Art. III, § 22,supra, change or modify the supervision over all matters relating to the public schools.

            The basic distinction between constitutional and legislative created offices was recognized by the Illinois court in People v. Bollam, 182 Ill. 528, 54 N.E. 1032 (1899), wherein the court said:

            ". . . The constitution thus recognizes two classes of officers, one which is created by the constitution itself, and the other, which is created by statute.  Where an office is created by statute, it is wholly within the control of the legislature, creating it.  But when an office is created by the constitution, it cannot be enlarged or lessened in scope by any  [[Orig. Op. Page 3]] statute, or be filled in any other manner than the manner directed by the constitution.  [Citation omitted]" (p. 532)

            InState ex rel. Joseph v. Douglass, 33 Nev. 82, 110 Pac. 177. (1910), the court said:

            "Every constitutional officer derives his power and authority from the constitution, the same as the legislature does, . . .

            "It is well settled by the courts that the legislature, in the absence of special authorization in the constitution, is without power to abolish a constitutional office or to change, alter, or modify its constitutional powers and functions.  [Citations omitted]

            ". . .

            "The legislature being without power to make one constitutional officesubordinate to another, or to consolidate or combine one with the other, . . ."  (Emphasis supplied.) (pp. 92-95)

            Accordingly, it is the opinion of this office that any legislative enactment which would attempt to make the state superintendent subordinate to the state board of education and subject to its direction in matters pertaining to the public schools would be unconstitutional.

            This conclusion is also supported by the application of the following rule cited by the court in the recent case of Bishop v. Yelle, supra.

            "In determining the meaning of a constitutional provision, the intent of the framers, and the history of events and proceedings contemporaneous with its adoption may properly be considered.  [Citations omitted]"  (pp. 291-292)

            In somewhat different language this rule is found in 11 Am.Jur., Constitutional Law., § 63:

            "It is settled by very high authority that in placing a construction on a Constitution or any clause or part thereof, a court should look to thehistory of the  [[Orig. Op. Page 4]] times and examine the state of things existing when the Constitution was framed and adopted, in order to ascertain theprior law, the mischief, and the remedy.  A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. . . ."  (Emphasis supplied.) (pp. 676-677)

            With this in mind let us proceed to examine: (1) the history of our constitution, and (2) the laws that were in existence when it was framed.

            (1) Constitution.

            The constitution of this state was framed by the convention which met at Olympia in July 1889.  It was ratified by the people at an election held on October 1, 1889, and on November 11, 1889, in accordance with § 8 of the Enabling Act, the President of the United States proclaimed the admission of the State of Washington into the Union.  As noted above, the framers of our constitution provided that the state superintendent should "have supervision over all matters pertaining to public schools."  However, the members of the convention were not unmindful of the role of the state board of education when they framed the provision relative to the state superintendent.

            In 1878, at the Walla Walla convention, when the first proposed constitution of Washington was written, we find among its provisions:

            Art. IX, § 1:

            "There shall be chosen, by the qualified electors, of the State, a Secretary of State, a State Treasurer, and a Superintendent of Public Instruction, who shall hold their offices for the term of four years. . . ."  (Emphasis supplied.)

            Art. IX, § 3:

            "The powers and duties of the Treasurer and Superintendent of Public Instruction shall be prescribed by law.  The Superintendent of Public Instruction shall be, by virtue of his office, state librarian."

            Art. XI, § 1:

             [[Orig. Op. Page 5]]

            "Thegeneral supervision of the public schools of the state shall be vested in aboard of education, whose powers and duties shall be prescribed by law.  The superintendent of public instruction, secretary of state, and state treasurer shall constitute the board of which the superintendent of public instruction shall be president."  (Emphasis supplied.)

            By comparing the provisions of the proposed constitution of 1878 and our constitution of 1889, it is clear that under the former the "general supervision" of the public schools was vested in a state board of education while under the latter, such supervision was placed inthe state superintendent.  This fact is significant if not conclusive in answering your question.

            (2) Statutes.

            Prior to the adoption of our constitution of 1889, the state superintendent and state board of education, under territorial law, were appointed by the governor.  See §§ 3154 and 3163, Code of 1881.  Likewise, their respective powers and duties were prescribed by law.  It is significant to note that even at that time the state superintendent was vested with "general supervision of public instruction."  Section 3155, Code of 1881.

            Thus, we must presume that with knowledge of the provisions of the 1878 constitution and territorial law, the framers of our constitution selected the state superintendent, rather than the state board of education, to have supervision "overall matters pertaining to public schools."  (Emphasis supplied.)

            In passing, we should like to mention that, in our consideration of your question, we have not overlooked the recent opinion of Yelle v. Bishop, supra, wherein the court held that the new budget and accounting act (chapter 328, Laws of 1959) did not violate Art. III, § 20, of the state constitution pertaining to the state auditor.  The provision reads as follows:

            "The auditorshall be auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law. . . ."  (Emphasis supplied.)

            The court, in construing this provision said:

            "We believe the words'in connection therewith' relate directly to his duty asauditor of public accounts to  [[Orig. Op. Page 6]] be fixed by the lawmaking body; that his powers and duties as auditor, by this language, are within the exclusive discretion of the legislature, which may be fixed, enlarged, or diminished by that body at any time."  (pp. 294-295)

            Later in the opinion the court went on to say:

            "We do not find it necessary to further discuss the cases cited from other jurisdictions since Washington is the only state in the Union which has the constitutional provision providing for the abolishment of the office of state auditor.  This unique provision is singularly significant in view of the fact that the framers of our constitutionquestioned the necessity of establishing such an office.  We are satisfied that Art. III, § 20, considered in the light of the state of mind of our convention delegates at the time of the adoption of this section, nullifies any inference that this office was to have any powers other than statutory powers, as they specifically provided."  (Emphasis supplied.)  (p. 297)

            Insofar as it is pertinent to our inquiry, we believe that theBishop case,supra, rests on the following grounds:

            (1) The specific language of Art III, § 20; (2) the fact that Art. III, § 25 provides for abolishment of the office of the auditor by the legislature; (3) the significance of the latter provision in view of the fact that the framers of our constitution questioned the necessity of establishing such an office; and (4) the combination of the foregoing nullified any inference that the office of auditor was to have any powersother than statutory powers as specifically provided.

            From our earlier discussion, it is apparent that the foregoing grounds are not equally applicable to the office of the state superintendent:

            (1) Unlike the provisions regarding the auditor, there is no language in Art. III, § 22,supra, to indicate that all the functions of the state superintendent ". . . are within the exclusive discretion of the legislature, which may be fixed, enlarged, or diminished by that body at any time."  Yelle v. Bishop, supra, p. 295.  Although the legislature may prescribe the specific duties of the office, it may not affect the supervision overall matters relating to public schools.

             [[Orig. Op. Page 7]]

            (2) Unlike the office of auditor, lieutenant governor and commissioner of public lands, the office of the state superintendent may not be abolished by the legislature under Art. III, § 25.

            (3) Unlike the auditor, we have failed to find any evidence that the framers ever questioned the necessity of including the state superintendent in the executive department as a constitutional officer.  In fact, the history of the education provisions of the constitution noted above disclose that care was taken to insure the state superintendent was given the supervision of the public schools.

            (4) Unlike the auditor's case, the combination of the foregoing compels the conclusion we have reached in respect to the constitutional limitation on the power of the legislature to make the state superintendent subordinate to the state board of education.

            In closing we should like to say that your question is very broad and without a specific bill before us it is difficult, if not impossible, to answer your question in other than general terms.  However, any act passed on this subject would have to be consistent with and not violate Art. III, § 22, before it could be upheld by the courts.  In the event that you have a particular bill upon which you desire this office to express an opinion, please feel free to submit the same for our review.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General