STATUTES ‑- CONSTRUCTION OF AMENDMENT ‑- TIME OF TAKING EFFECT ‑- GROUND WATER RIGHTS ‑- EXPIRATION OF PERIOD FOR FILING APPLICATION

STATUTES ‑- CONSTRUCTION OF AMENDMENT ‑- TIME OF TAKING EFFECT ‑-GROUND WATER RIGHTS ‑- EXPIRATION OF PERIOD FOR FILING APPLICATION.

The owner of a vested ground water right is entitled to a ground water right certificate at any time within three years after the effective date of chapter 122, Laws of 1947.

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                                                                   March 7, 1951

Honorable J. V. Rogers, Director
Department of Conservation and Development
Transportation Building
Olympia, Washington                                                                                               Cite as:  AGO 49-51 No. 467

Dear Sir:

            In your letter of March 1 you asked the following question:

            Is the owner of a vested ground water right entitled to receive a certificate of such ground water right after the expiration of three years from the effective date of chapter 263, Laws of 1945?

            You are advised:

            The owner of any vested ground water right is entitled to a ground water right certificate at any time within three years after the effective date of chapter 122, Laws of 1947.

                                                                     ANALYSIS

            Section 9 of chapter 263, Laws of 1945, which is section 7400-9 Rem. Supp. 1945, and which will be referred to as the amended law, provides for a certificate "* * * within three (3) years after the effective date of this act * * *".

             [[Orig. Op. Page 2]]

            Section 2, chapter 122, Laws of 1947, which is section 7400-9 Rem. Supp. 1947, and which will be referred to as the amending act, carries the same provision in the same words.

            While the general rule is that the part of the original act which remains unchanged in an amending act is considered as having continued in force as the law from the time of its original enactment, the court will determine what defects existed in the original act which the Legislature intended to cure, and then construe the amending act so as to cure the defects.

            Sutherland Statutory Construction Third edition, vol. 1, sec. 1931, p. 417.

            State ex rel. School District No. 102 v. Clausen, 116 Wash. 432, 199 Pac. 752.

            Spokane Co. v. Certain Lots in Spokane, 156 Wash. 393, 287, Pac. 675.

            Henry v. McKay, 164 Wash. 526, 3 P. (2d) 145.

            Land v. Dept. of Labor and Industries, 21 Wash. (2d) 420, 151 P. (2d) 440.

            The amended act contains the following proviso:

            "And provided further, That the small withdrawals in the classes exempted from the provisions of section 5 of this act are and shall be exempt from the provisions of this section."

            The amending act eliminated this proviso, and in another section (section 1, chapter 122, Laws of 1947, section 7400-5 Rem. Supp. 1947), granted the right to receive such a certificate to the owners of such small vested ground water rights in the following language:

            "Provided, further, That at the option of the party making withdrawals of ground waters of the state not exceeding five thousand (5,000) gallons per day, applications under this section of declarations under section 9 of this act may be filed and permits and certificates obtained in the same  [[Orig. Op. Page 3]] manner and under the same requirements as is in this act provided in the case of withdrawals in excess of five thousand gallons a day."

            The Legislature, therefore, granted a new right, and although it referred to chapter 263, Laws of 1945, it granted that new right "in the same manner and under the same requirements as is in this act provided in the case of withdrawals in excess of five thousand (5,000) gallons a day", which must be a reference to chapter 122, Laws of 1947.

            The amending act provided for a filing fee which the amended act did not, but as we have seen, the Legislature intended to do more than continue the copied wording of the amended act in effect, and to accomplish this purpose, the plain wording of the amending act must be given effect, and the act as a whole must be treated as referring to an effective date, which is the effective date of chapter 122, Laws of 1947.

            You are, therefore, advised that the owner of any vested ground water right is entitled to a certificate at any time within three years after the effective date of chapter 122, Laws of 1947, which period may be extended two (2) additional years.

Very truly yours,

SMITH TROY
Attorney General

E. P. DONNELLY
Assistant Attorney General