STATUTES ‑- RETROACTIVITY ‑- APPLICATION TO PENDING PROCEEDING -- ELECTIONS ‑- SCHOOL DISTRICT

STATUTES ‑- RETROACTIVITY ‑- APPLICATION TO PENDING PROCEEDING --ELECTIONS ‑- SCHOOL DISTRICT

State effective between dates of first and second school district elections, altering procedure therefor, controls second election.

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                                                                   May 19, 1955

Honorable Hewitt A. Henry
Prosecuting Attorney
Court House
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 78

Dear Sir:

            You have requested the opinion of this office upon a question arising from the following state of facts:

            On March 8, 1955, elections were held in Boston Harbor, Nisqually and Tumwater School Districts under the provisions of chapter 229, Laws of 1953 (1953 Supp.) chapter 28.56 RCW, to determine whether the voters in those districts would approve the plan submitted for their financial participation in the construction of a vocational high school building in the Olympia School District.  The measure was rejected in each district.  Pursuant to RCW 28.56.060 (1953 Supp.), a second election in those three districts has been set for May 24, 1955.  Between the first elections mentioned above and the proposed date of the second elections, chapter 344, Laws of 1955, amending the relevant provisions of chapter 28.56 RCW (1953 Supp.), was enacted by the legislature and took effect on April 1, 1955.

            Your question is whether or not the proposed second elections would be valid.

            In our opinion the second elections would not be valid.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            RCW 28.56.060 (1953 Supp.) provided that the second election, in case of a negative result in the first, should be held within a reasonable time.  Section 6, chapter 344, Laws of 1955, amends that provision so that the second election must now be held within sixty days after the first, if the vote in the first election is negative.

            If section 6 of chapter 344 is controlling, a proposed second election on May 24, 1955, would be invalid because more than sixty days would then have elapsed since March 8, 1955.  InState ex rel. Fish v. Howell, 59 Wash. 492, 499, the court said that

            "* * * the rule has been declared to be that elections can only be held when affirmatively authorized by law; * * *"

            In 29 C.J.S. 101, Elections, § 76, it is stated that

            "Time and place are of the substance of every election, and as a rule it is essential to the validity of an election that it be held at the time and in the place provided by law, * * *"

            In the same text, at p. 102, § 77, we find the following:

            "Time is an essential element of a valid election.  * * * Statutes specifying the date of holding an election are ordinarily regarded as mandatory, and no election can be held at any other time except under valid and applicable statutes providing for special elections; and an election held on another day than that fixed by the legislature is void, unless its holding at a different date is compelled by a court of competent jurisdiction.  * * *If the statute requires a special election for any purpose to be held within a certain time after the presentation of a petition, an election  [[Orig. Op. Page 3]] held after that time will be void, and the omission to hold an election at the proper time cannot be supplied by a subsequent one not provided for by law.  * * *" (Emphasis supplied)

            If applicable, the time limitation expressed in § 6 of chapter 344 will be a cut-off point, beyond which a valid election could not be held.

            As a general rule, a statute will operate only prospectively; that is to say, only upon cases or proceedings arising after its enactment.  An important exception, however, is stated in Pape v. Department of Labor & Industries, 43 Wn. (2d) 736, at 741:

            "This general rule of construction, that the legislature intended an act to operate prospectively only, is not applied when the statute relates to remedies only, and does not affect vested rights.  In the absence of language showing a contrary intent, a new law changing a remedy is generally regarded as applicable to all remedies ‑ those which have accrued and those which will accrue in the future.  Nelson v. Department of Labor and Industries, 9 Wn. (2d) 621, 115 P. (2d) 1014."

            As the quotation indicates, new legislation is generally held applicable to remedies or proceedings which have then begun, providing that vested or existing rights are not disturbed thereby.  See 82 C.J.S. 998,et. seq., Statutes § 422.  In the same section, at p. 1000 the text says:

            "Special Proceedings.  In a special proceeding it is also the rule that in so far as a new statute merely provides for changes in the mode of procedure, it will not invalidate steps taken before it goes into effect, but will apply to all proceedings taken thereafter."

            A period of thirty-eight days was available after April 1, 1955, within which the second elections could have been set up in compliance with § 6, chapter 344, including the notice of closure of the registration books under RCW 29.07.160.  Further, on the question of reasonable notice of the change in requirement, we may point out that in thePape case, supra, the court took the date on which  [[Orig. Op. Page 4]] the law was signed by the governor for this purpose.  Here, chapter 344 was signed by the governor on March 21, so that a period of forty-eight days was available for consideration and preliminary steps.  It is true that such matters may easily be overlooked during the press of a legislative session.  We have discussed the time element only to show that compliance with the new provision was possible in law and in fact.

            We do not think that this is a situation in which existing or vested rights might have been curtailed or destroyed, in the sense that the statutory change might thereby be rendered inapplicable to the pending proceedings.  A school district is a municipal corporation.  State ex rel. Griffiths v. Superior Court, 177 Wash. 619.  As such it is subject to general laws, like chapter 344, and to the legislative discretion under Article XI, § 10, of the Constitution.  We have found no constitutional provision which would forbid this kind of legislative alteration of procedure.  The district, therefore, had no vested right in the pattern of elections and procedure fixed by (1953 Supp.) chapter 28.56 RCW.  Nor do we believe that individual voters have been deprived of any right or restricted in its exercise.  They still have the opportunity to express themselves, twice if necessary, upon the measure submitted.  They had a mere expectancy as to discretionary executive action following a second negative vote under the former law.

            From what has been said, we conclude that an election held on May 24, 1955, and purporting to be the second election, following a negative vote in the first, pursuant to (1953 Supp.) 28.56.060 RCW, would be invalid because of the time limitation subsequently interposed by § 6, chapter 344, Laws of 1955.

            We hope the foregoing analysis will prove helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General