PRIVATE USE OF CONVICT LABOR UNDER STATUTES AUTHORIZING SUCH USE FOR 'THE DURATION OF THE EXISTING WAR.'

PRIVATE USE OF CONVICT LABOR UNDER STATUTES AUTHORIZING SUCH USE FOR "THE DURATION OF THE EXISTING WAR."

Statutes allowing private use of convict labor for "the duration of the existing war" are no longer valid and subsisting legislation because the war has been terminated.

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                                                                 January 18, 1954

Honorable Peter R. Giovine
Acting Commissioner
Employment Security Department
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 192

Dear Sir:

            We have your letter of December 21, 1953, in which you request an opinion on the following specific questions:

            (1) Are sections 4, 5 and 6 of chapter 175, Laws of 1943, still effective and subsisting legislation?

            (2) If your answer to (1) above is in the affirmative, do such sections violate any provision of the Constitution of the State of Washington and particularly Article 2, section 29 of that Constitution?

            In our opinion the time referred to in the phrase "for the duration of the existing war" found in section 8 of chapter 175, Laws of 1943, has expired and thus sections 4, 5 and 6 of such chapter are no longer effective and subsisting legislation.

                                                                     ANALYSIS

            Section 8 of chapter 175, Laws of Washington, 1943, reads as follows:

             [[Orig. Op. Page 2]]

            "This act is necessary for the immediate preservation of the public peace, health and safety and shall take effect immediately.  Sections 4, 5 and 6 shall remain in force only for the duration of the existing war."

            Sections 4, 5 and 6 of said chapter, briefly, allow, under certain conditions and with certain exemptions, convicts to perform labor on private farms and certain other types of labor for private individuals.

            At the time of the approval of the above chapter by the Governor on March 19, 1943, the United States was at war with Japan, Germany, Italy, Hungary, Rumania, Bulgaria, and Finland.  By the Paris Peace Treaties of 1947, treaties of peace were concluded with the last five named nations.  In 1951 a peace treaty was concluded with Japan which is known as the San Francisco Peace Treaty of 1951.  No peace treaty has been concluded with Germany.  However, House Joint Resolution 289; 65 Stat. 451, was passed by the Senate on October 18, 1951, and was approved by the President on the following day; and on October 24, 1951, the President, by Proclamation 2950; 16 Fed. Reg. 10915, proclaimed that the state of war between the United States and the government of Germany was terminated on October 19, 1951.

            While the conclusion of the state of war with Germany by unilateral action, such as resolution and proclamation, rather than by bilateral action of a treaty of peace raises interesting and complex questions in the field of international law, it seems too clear to require citation of authority that the sections of the act in which you are interested are domestic or municipal law as distinguished from international law.

            Turning then to the field of domestic law, we find that there are two distinct lines of authority on the question of the termination of a state of war.  Our Supreme Court in the case ofHoover v. Sandifur, 25 Wn. (2d) 791, describes the two lines of authority on the basis that one line holds:

            "* * * that the termination of a state of war is a political, rather than a judicial, question and may be brought about only by legislative resolution or executive proclamation."  (Emphasis ours),

            and describes the second line of authority as holding:

             [[Orig. Op. Page 3]]

            "* * * that such terms as 'duration' and 'end of war' mean, as commonly understood, the cessation of actual hostilities."

            One of the best reasoned cases that we have found in that second line of authority was decided by the Washington Supreme Court in 1930.  InState ex rel. Peter v. Listman, 157 Wash. 229, the court said, on page 235:

            "* * * the language of a written law must be read in a sense which harmonizes with the subject-matter and general purpose and object of the law."

            So far as the first line of authority is concerned, the war has been terminated by proclamation, consequently the requirements of the rule propounded by those courts has been satisfied.  It would also appear that the reasoning of the courts following the second line of authority has been satisfied.  If one considers the situation confronting the legislature in 1943, namely, a nation at war being required to use all of its available manpower and resources to wage that war and to produce material for such purpose, including foodstuffs, and contrasts it with the situation now existing; the general purpose and object of the law was satisfied when the situation which it was designed to meet had ceased to exist.

            In view of the above, it is our considered opinion that the time to which the phrase "for the duration of the existing war" used in section 8 of chapter 175, Laws of 1943, applies has expired, and sections 4, 5 and 6 of such chapter are no longer effective and subsisting legislation.

            As we read your letter of December 21, 1953, the above answer to the first question obviates the necessity of expressing any opinion on the second question therein contained.

Very truly yours,

DON EASTVOLD
Attorney General

J. D. THOMAS, JR.
Assistant Attorney General