WESTERN INTERSTATE COMMISSION FOR HIGHER EDUCATION

WESTERN INTERSTATE COMMISSION FOR HIGHER EDUCATION

The enabling act, chapter 214, Laws of 1955, allowing state participation in a compact of western states respecting higher education is constitutional.

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                                                               December 14, 1955

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 173

Attention:  !ttF. D. Keister

            Assistant State Auditor

Dear Sir:

            We have received and considered your request for opinion as to the constitutionality of chapter 214, Laws of 1955.  Your specific inquiries are stated as follows and will be answered and discussed in the same order:

            (1) Does it conflict with the Seventh Amendment which delegates the legislative authority to the legislature subject to the authority of the people through the initiative and referendum?

            (2) Envisioning any possible suits that could be brought against the State of Washington or any of its agencies by the commission, does Article III of the compact conflict with Article II, § 26, of the constitution which provides that the legislature shall direct by law in what manner and in what courts suit may be brought against the state?

            (3) Does the act conflict with Article II, § 28, of the constitution, which provides against special laws for granting corporate powers or privileges?

             [[Orig. Op. Page 2]]

            (4) Does Article III of the compact bypass Article III, §§ 20 and 21, of the state constitution which makes the state auditor the auditor of public accounts and the attorney general the legal adviser of all state officers?

            (5) Is the act in conflict with Article VIII, § 5, which forbids the credit of the state to be given or loaned to or in aid of any individual, association, company, or corporation?

            We answer all of your questions in the negative.

                                                                     ANALYSIS

            (1) Answering query No. 1, we find no conflict with the Seventh Amendment of the state constitution.

            Amendment 7 of the state constitution is set forth in appropriate part as follows:

            "The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the State of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature."

            The quoted section reserves to the people the power of initiative and referendum, which is further specifically given by subsections (a) and (b) of the Seventh Amendment.

            Chapter 214, Laws of 1955, is subject to referendum if the people of the state wish to exercise this right.  Thus, no constitutional right of the people is abrogated by the act.

             [[Orig. Op. Page 3]]

            It is possible that your question was intended to determine whether there was by the passage of chapter 214, Laws of 1955, an unlawful delegation of legislative power to the Western Interstate Commission for Higher Education.  If this be your inquiry, our answer is the same.

            Compacts and statutes relating to interstate cooperation have generally been upheld as against constitutional objection, unless relating to political alliances encroaching upon the supremacy of the United States.  81 C.J.S. 903, § 10; 49 Am.Jur. 232, § 11; 134 A.L.R. 1411.  Compacts which have been upheld as against constitutional objections include boundary lines, river control, water rights, fishing privileges, bridges, councils of state governments, memorials, and ports.  In view of the many interstate compacts which have been sustained, we find no difficulty in determining the legality of a compact providing for interstate cooperation with respect to higher education.

            Chapter 214, Laws of 1955, does not attempt to delegate legislative power to the Western Interstate Commission for Higher Education.  Rather, a general policy is stated, with standards established, within the framework of which the commission is given administrative authority to carry out the policy.

            Justice Frankfurter, speaking for the Supreme Court of the United States in the case ofWest Virginia v. Sims, 341 U.S. 22, 95 L. Ed. 713, is quoted as follows:

            "* * * The issue before us is whether the West Virginia legislature had authority, under her constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.

            "That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government.  * * *"

            In the case cited, the validity of an eight-state compact relating to pollution control was sustained.

            Our own court has on numerous occasions, involving intrastate problems, held that it is not a delegation of legislative power where an administrative  [[Orig. Op. Page 4]] body is given authority to determine facts upon which the application of law depends.  Senior Citizens League, Inc. v. Department of Social Security, 38 Wn. (2d) 142, 228 P. (2d) 478.

            In view of the foregoing, we conclude in answer to your first question that there is not an unlawful delegation of legislative authority to the commission.

            (2) In answer to your second question, we find no conflict between Article III of the compact and Article II, § 26, of the state constitution.

            Article III of the compact, § 2, chapter 214, Laws of 1955, provides:

            "The compacting states and territories hereby create the Western Interstate Commission for Higher Education, hereinafter called the Commission.  Said Commission shall be a body corporate of each compacting state and territory and an agency thereof.  The Commission shall have all the powers and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states and territories."

            Article II, § 26, of the state constitution provides:

            "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state."

            The legislature by Article III of the compact made the commission "a body corporate" of thestate and "an agency thereof" with right "to sue and be sued."  Having already decided that the legislature may enter into an interstate compact respecting higher education, it remains only to say that, in granting the commission the right to sue and be sued, the legislature is merely exercising the power extended to it by Article II, § 26, of the state constitution.  Thus, there is no constitutional objection in this respect.

             [[Orig. Op. Page 5]]

            (3) Your third inquiry is answered in the negative.

            Article II, § 28, subparagraph 6, of the state constitution provides:

            "The legislature is prohibited from enacting any private or special laws in the following cases:

            "6. For granting corporate powers or privileges."

            We do not regard chapter 214, Laws of 1955, as a special law granting corporate powers and privileges.

            The constitutional inhibition here in question was intended to protect the people from such legislative grants of power to corporations, either private or municipal, which in effect amount to special favoritism as opposed to grants which were generally applicable to corporations similarly situated, with allowance in this connection for a reasonable classification of such corporations.  Terry v. King County, 43 Wash. 61, 86 Pac. 210; Town of Denver v. Spokane Falls, 7 Wash. 226, 34 Pac. 926.

            In entering into the interstate compact respecting higher education, the legislature has enacted a general law applicable to such education in the broadest sense to achieve uniformity of educational goals.  The compact contains no discriminatory feature whatever.  In this connection, the following language of our court in the case of Wheeler School District v. Hawley, 18 Wn. (2d) 37, 137 P. (2d) 1010, is singularly applicable:

            "Nor can the act be said to be a special law in contemplation of Art. II, § 28, of the constitution.  On the contrary, it is a most comprehensive plan for the reorganization of the common school system, the creation and maintenance of which is committed to the legislature in the broadest possible terms by Art. IX, § 2, of the constitution, commanding:  'The legislature shall provide for a general and uniform system of public schools.'  (Italics ours.)  The act is general, and its very purpose is to establish, so far as possible, uniformity in educational opportunity and facilities.  State ex inf. Wright v. Morgan, 268  [[Orig. Op. Page 6]] Mo. 265, 187 S.W. 54.  SeeLewis County v. Gordon, 20 Wash. 80, 54 Pac. 779; Bussell v. Gill, 58 Wash. 468, 108 Pac. 1080; State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651."

            In analyzing chapter 214, Laws of 1955, we believe the same comment is appropriate.

            (4) We answer your fourth inquiry in the negative.

            (a) Article III, § 20, of the state constitution provides in part as follows:

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

            Article VII, paragraph 7, of the compact provides:

            "The Commission shall keep accurate books of account, showing in full its receipts and disbursements, and said books of account shall be open at any reasonable time for inspection by the governor of any compacting state or territory or his designated representative.  The Commission shall not be subject to the audit and accounting procedure of any of the compacting states or territories.  The Commission shall provide for an independent annual audit."

            It might appear that a conflict exists between the constitution and compact in so far as the latter extends no function to our state auditor in auditing the commission's accounts.  These accounts, furthermore, are public accounts inasmuch as the commission is made a body corporate of this state and an agency thereof.

            We are convinced, however, that this conflict is more apparent than real.  In our opinion, Article II, § 20, of the state constitution deals with the intrastate administration of the fiscal affairs of state government.  We think  [[Orig. Op. Page 7]] it clear that the people in adopting our constitution had no intention of creating a limitation upon the exercise by the state of its power to enter into compacts with sister states subject only to the consent of Congress as provided by Article I, § 10, cl. 3, of the U. S. constitution.  There is no substantive conflict between our constitution and the compact in this regard.

            But assuming the existence of a substantial collision between the constitution and the compact, we nevertheless would be compelled to conclude that such a conflict would not invalidate the compact.  In this connection, Mr. Justice Reed, in concurring with the opinion of the court in theSims case, op. cit., said at 341 U.S. 22, 34:

            "West Virginia adjudges her execution of the compact is invalid as a delegation of state police power and as a creation of debt beyond her constitutional powers.  Since the Constitution provided the compact for adjusting interstate relations, compacts may be enforced despite otherwise valid state restrictions on state action."

            (b) Article III, § 21, of the state constitution provides in part:

            "The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.  * * *"

            No provision has been made as to the manner in which the commission shall be advised on legal matters.  Since the commission is made a corporation of each state, the attorney general of each state may advise the commission or the state members thereof upon request.

            (5) Answering your fifth question, we find no conflict between chapter 214, Laws of 1955, and Article VIII, § 5, of the state constitution.

            The credit of the state is not loaned to the commission.  The state expenditure is limited to the appropriation made by the legislature for the purpose of carrying out the terms of the act.  Any future expenditure or participation by this state will be dependent upon the appropriation made by  [[Orig. Op. Page 8]] the legislature.

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

Very truly yours,

DON EASTVOLD
Attorney General

DONALD E. WATSON
Assistant Attorney General