Treffry v. Taylor

Donworth, J.

(dissenting) — My reasons for disagreeing with the holding of the majority that the title of chapter 77, Laws of 1963, is adequate in the face of art. 2, § 19, of our constitution (which requires that the subject of a legislative bill shall be expressed in its title) may be briefly stated.

The past and present legislative history of statutes and bills regulating and licensing various occupations and busi*495nesses convinces me that the title of the 1963 act violates the constitutional provision referred to above.

This act is the first (and only) time the legislature has used the word “registration” in the title of an act to describe regulation and licensing of an occupation or business. The appendix attached to this dissent cites the 14 prior acts and their titles. As we were advised by counsel during oral argument, the legislature has recognized the difference between the words “registration” and “regulation” by its action in the 1965 extraordinary session when legislation amending RCW 18.27.010-100 (Laws of 1963, ch. 77) was introduced in the House of Representatives (House Bill No. 292) with an amended title, reading as follows:

An Act Relating to the regulation of contractors; prescribing penalties; and repealing chapter 77, Laws of 1963 and RCW 18.27.010 through 18.27.100.

As this court stated in In re Bale, 63 Wn.2d 83, 89, 385 P.2d 545 (1963):

(. . . Assuming it to be true . . . that these bills never came to a vote before the entire legislature, the fact that they were introduced and referred to committees has some probative value relative to the legislature’s intent.)

The bill which was originally introduced was a re-enactment of chapter 77, Laws of 1963, with a new title, in which the word “registration” was changed to read “regulation.”

The House passed the bill after considerable amendment activity pertaining mainly to the inclusion or exclusion of sections 4 and 5. Not once did the House consider using the word “registration” in the title of the amendatory act, even when the House Committee on Licenses removed sections 4 (requiring a bond) and 5 (requiring the public liability insurance), and advised passage without those provisions. The House itself recognized that what the bill contemplates is not mere “registration” but “regulation.”

House Bill No. 292 passed the House without section 4 (requiring the bond) but with section 5 (requiring the public liability insurance). The bill was sent to the Senate, where *496its consideration was indefinitely postponed on May 7, 1965, the last day of the extraordinary session.

This history is relevant because the legislature has, in effect, demonstrated that it recognizes that there is a significant difference in the meaning of “registration” and “regulation” to legislators, once the error is called to its attention. Whatever the cause of the failure of the Senate to act on the bill, there is nothing in the record of the legislature to indicate that such inaction was in any manner related to the replacement of the word “registration” with “regulation” by the House so as to correct the title of the act. It .is clear that the House, and probably the Senate, entertained the belief that the present title is inadequate to cover all the provisions of the 1963 act, as required by art. 2, § 19. However, the majority opinion appears to ignore this past and present legislative history and holds that these two words are legally synonymous, although they are not synonymous according to either the dictionary or the legislative usage. I, therefore, feel compelled to discuss the merits of the issue of whether “registration” means the same as “regulation.”

The purpose of Const. art. 2, § 19, has been stated and restated by this court. The latest expression is in Young Men’s Christian Ass’n v. State, 62 Wn.2d 504, 506, 383 P.2d 497 (1963):

The purposes of this constitutional mandate are: (1) to protect and enlighten the members of the legislature against provisions in bills of which the titles give no intimation; (2) to apprise the people, through such publication of legislative proceedings as is usually made, concerning the subjects of legislation that are being considered; and (3) to prevent hodgepodge or logrolling legislation.

Also, see Miller v. Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963), and cases cited, including Gruen v. State Tax Comm’n, 35 Wn.2d 1, 211 P.2d 651 (1949), which state precisely the same points. In the Gruen case, there is an excellent discussion of the decisions of this court wherein it has held that a title may be restrictive or general. The *497rules were succinctly restated by the Gruen opinion in 35 Wn.2d at 22, 23, where it was said:

Titles to statutes may be general or restrictive; or, in other words, broad or narrow, since the legislature in each case has the right to determine for itself how comprehensive shall be the object of the statute. And it also has a' wide discretion in the particularity of the title selected to express it, provided that, by a fair construction, such title complies with the constitutional provision in question.
A general title may be said to be one which is broad and comprehensive, and covers all legislation germane to the general subject stated. It is not an objection that it covers more than the subject of the body of the act, but it must not, in any event, cover less. It is not necessary that it index the details of the act, or give a synopsis of the means by which the object of the statute is to be accomplished. All matters which are germane to the subject may be embraced in one act. Under the true rule of construction, the scope of the general title should be held to embrace any provision of the act, directly or indirectly related to the subject expressed in the title and having a natural connection thereto, and not foreign thereto. Or, the rule may be stated as follows: Where the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will, or may, facilitate the accomplishment of the purpose so stated, are properly included in the act and are germane to its title.
On the other hand, a restrictive title is one where a particular part or branch of a subject is carved out and selected as the subject of the legislation. If the legislature seeks this method, and notwithstanding a general title could have been adopted which loould have covered the entire subject and authorized legislation upon the whole of it, the body of the act must be confined to the particular portion of the subject which is expressed in the limited title. The courts cannot enlarge the scope of the title. They are invested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been more comprehensive, if, in fact, the legislature has not seen fit to make it so. (Italics mine.)

*498The major issue on this appeal is whether the title, as worded by the legislature, gives adequate notice of the inclusion of requirements of bonds and insurance in order for the applicant contractor to receive a “certificate of registration.” The title reads: “An Act providing for the registration of contractors; and prescribing penalties.” The key word in the title with regard to this controversy is “registration.”

The trial court reasoned in his memorandum opinion that “registration” is a word of relatively narrow meaning, and, as used in the title of the act, indicates a listing of contractors, but not the regulation of contractors. The trial court expressed the belief that the subject matter of the provisions of sections 4 and 5, requiring bonds and insurance, respectively, is related to and germane to regulation but not to mere registration. Respondent has argued, and the trial court believed, that registration is a much narrower subject than regulation; that registration is actually only a part of an over-all program of regulation of contractors created by this act.

I am of the opinion that the trial court and respondent are correct. Theirs is the most acceptable view of the problem — for to hold that bonding and insurance are germane to registration is to hold that “registration” and “regulation” are synonymous. To me, the meanings of the two words are clearly different. Registration connotes merely a listing of contractors or, at most, an official certification list; regulation connotes requirements and controls established for the operation of a contracting business resulting in the licensing of persons desiring to engage in that occupation upon their compliance with certain conditions.

Appellant has argued that registration is “generic.” The word may be generic in the sense that there can be many kinds of registration for different purposes, but the problem is that registration normally just does not mean to the general public or to the busy legislator that bonds and insurance are required in order for a contractor to obtain a certificate of registration. Webster’s Third International Dictionary (1961) at 1912, gives several meanings, none *499of which is broad enough to give this kind of notice. As pointed out above, in referring to the appendix to this dissenting opinion, a careful examination of all statutes enacted by the legislature pertaining to licensing or regulation of various professions or businesses shows that, in every single instance where the state requires bonds or insurance, the title either broadly refers to the subject matter by characterizing the subject as regulation (i.e. relating to the regulation or licensing of an area of commerce) or specifically mentions the bond or insurance requirements.

Appellant also argues that bonding and insurance may be required as prerequisites to registration, and that, by simply using the word “registration” in the title, the public is put on inquiry as to what the prerequisites to registration are. I agree that bonding and insurance may be made prerequisites to registration if they are included in the title. However, I disagree with appellant’s contention that simply because “registration” is to be required, the public is put on inquiry as to the prerequisites of registration, regardless of whether the prerequisites are germane to the word “registration.” I recognize that “registration” may give notice of some prerequisites, such as supplying specific information (as provided in section 3 of the act). If the registration pertained to “financial ability of contractors,” it might give warning that certain financial prerequisites were involved. Sections 4 and 5 pertain to financial ability of contractors. The subject of financial ability is important in the regulation of contractors — but it has relationship to registration of contractors only because both proof of financial ability and registration are related to the broader subject of regulation. Financial ability has no direct connection with registration, unless it is made a special prerequisite to qualify for registration outside the normal meaning of the word registration itself.

I conclude, therefore, that the title of chapter 77, Laws of 1963, is “restrictive” within the meaning of the Gruen case, supra.

*500Reference has been made to the appendix which cites the statutes of this state regulating or licensing persons in certain businesses wherein bonds or insurance are required as prerequisites. In none of the titles of these statutes does the word “registration” even appear, although a form of registration through licensing is required as a part of the system of regulation. Neither the public nor the legislature has any warning or any way of knowing of the broad requirements and provisions of the act when the legislature suddenly introduces the new and much narrower word “registration” rather than broader words such as the word “regulation” that has heretofore been used. The natural inference is that the words “registration” and “regulation” cannot and should not be construed synonymously because heretofore “registration” has been only a possible (but not necessary) part of regulation.

For the reasons stated above, I am firmly of the opinion that the constitutional requirements of art. 2, § 19, have not been met, because the title is not broad enough in scope. Of course, courts can and should construe a word reasonably, but, as the court stated in Gruen v. State Tax Comm’n, supra at 23: “The courts cannot enlarge the scope of the title. They are imested with no dispensing power.” As I read the majority opinion, this court is doing just that in this case.

The majority attempts to equate “registration” with “regulation.” It appears to me that the majority opinion has assumed its answer to the constitutional issue by looking at the body of the act before it has determined the meaning of the title, and has thus violated one of our basic rules in the application of Const. art. 2, § 19.

The following quotation from the majority opinion demonstrates this misconception of our rule:

Upon reading the title to this act, a contractor engaged in business in the state of Washington would be led to inquire whether his business was within the purview of the regulatory measure. The first section of the act would give him the answer. If his business required that he register, he would then reasonably seek further in*501formation from the act to determine whether he qualified for a certificate of registration. Section 4, supra, would put him on notice that, in order to qualify and be issued a certificate of registration, he would be required to furnish a surety bond to the state for the payment of the obligations enumerated in § 4. Section 5, supra, would put him on notice that a public liability and property damage insurance policy is required.
Every legislative enactment requiring registration is an exercise of the legislature’s police power, and is, by its nature, regulatory of the subject matter. The word “registration” encompasses all regulatory provisions which the legislature enacts, in the proper exercise of its police power.

In the quoted portion of its opinion, I think that the majority is in error in two respects. First, it begs the question in its first sentence, and later in its second paragraph, by an ipse dixit supported by no case authority, no examples of statutes, and no reference to even the common man’s understanding of the word “register” as reflected by modern dictionaries. Indeed, the majority opinion appears to say that “registration” is broader in meaning and connotation than “regulation,” when it states that the word “ ‘registration’ encompasses all regulatory provisions which the legislature enacts, in the proper exercise of its police power.” As explained above, it seems to me much more appropriate to view regulation as the encompassing concept — registration may be merely a part (although not a necessary part) of a regulatory scheme. The majority’s use of these important terms seems to me, at least, inappropriate, and perhaps illogical. How can an unnecessary part be greater than the whole?

The greater error, however, is the second one, when the majority states that a contractor may refer to the body of the act to obtain notice of what the act contains, and thereby attempts to show that its understanding of the word “registration” is correct. This is a violation of one of our basic rules for the application of Const. art. 2, § 19.

The rule violated by the majority is stated in Great Northern Ry. v. Cohn, 3 Wn.2d 672, 680, 101 P.2d 985. (1940):

*502In determination of the question whether the title of an act is in compliance with the constitutional requirement invoked by respondent, the title must be construed with reference to the language used in the title only and not in the light of the context of the act.

This rule was quoted with approval and reaffirmed in Gruen v. State Tax Comm’n, supra at 9.

The legal authority relied on by the majority for holding that resort must be had to the examination of the body of the act in order to understand the title, appears to be its paraphrase of a part of a sentence in Rourke v. Department of Labor & Indus., 41 Wn.2d 310, 249 P.2d 236 (1952). That opinion does not hold, or even suggest, by its treatment of the case, that this court or a legislator or the public must look to the sections or the body of an act to obtain notice of what the subject of the act is.

In the Rourke case, in the next two paragraphs immediately following the sentence paraphrased by the majority, this court stated, at p. 312:

A title may be general or restrictive, that is, it may be either broad and comprehensive and cover all legislation germane to the general subject stated, or it may be one in which a particular part or branch of the subject is carved out and selected as the subject of the legislation. Gruen v. State Tax Commission, supra, pp. 22, 23. A restrictive title is not regarded as liberally as is a general one, and provisions of the bill which it does not fairly embrace cannot be given force. Gruen v. State Tax Commission, supra, p. 21.
By these rules, we conclude that the title of the questioned act is restrictive, and does not comply with the second clause of the constitutional mandate because it (1) does not give notice that certain firms, as employers, are affected by the act, but refers only to employees; (2) contains no reference to medical and surgical care, but only to compensation; (3) does not mention charitable institutions, but the body of the act mentions and excludes churches and educational institutions from its provisions; (4) is silent regarding the workmen’s compensation law and does not indicate that amendment of that law is intended, yet the act itself refers to that law for construction of the word “extrahazardous” and for *503the determination of contributions and benefits, and purports to extend the coverage of that law. (Italics mine.)

We should note that the Rourke case was heard en banc. There was only one dissenter.

As I understand the Rourke majority opinion, this court held that the title was restrictive without looking at the body of the act. It then held that several things, which were plausibly related to the title but not included within its scope, were outside the title. For example, employers were not given notice that they were within the scope of the act because the title referred only to “employees” even though it is obvious that every “employee” must have an employer, as the dissent in that case points out. Without going further into the details of the Rourke case, suffice it to say that, in my opinion, that case is no authority for the majority’s statement that the sections of the act give notice to or inform anyone of anything. The constitution requires that the subject of an act shall be expressed in its title, which naturally eliminates the body of the act as performing this office.

Of course, there is a valid reason for referring to the body of an act when applying art. 2, § 19. One must look at the body of the act to determine if it is within the scope of the title after one has determined the scope of the title. But that is not what the majority has done in this case. It has confused the issue of the meaning of “registration” by looking at the body of the act to see if, after the court learns what provisions the act contains, it can find any plausible connection of any kind between those provisions and the title. That reasoning is contrary to the decisions in both the Rourke case, supra, and the Gruen case, supra. Yet, those are cases which constitute a part of the basic authority relied on by the majority to support its position in this case. No other cases cited by the majority support their approach.

In summary, it is my opinion that the title of the bill involved in this case violates the second mandate of Const. art. 2, § 19, that the subject of the bill shall be expressed *504in the title. For this reason, I dissent from the majority opinion. I do not disagree with the majority as to the other issues raised by respondent.

I would affirm the trial court’s judgment on this ground, thereby effecting the dissolution of the pending injunction and the dismissal of the action.

Rosellini, C. J., concurs with Donworth, J.

Appendix to Dissent

Laws Requiring Bonds or Insurance as a Requirement for Engaging in Business

1. Subject Matter: Aircraft Dealers

Code and Session Citation: RCW 14.20.070, Laws of 1955, ch. 150.

Title: An Act relating to the licensing of aircraft dealers; providing for an aircraft dealer’s license and for an aircraft dealer’s certificate in lieu of a registration fee and an excise tax on certain aircraft, and amending section 12, chapter 49, Laws of 1949 and RCW 14.04.250, and section 10, chapter 49, Laws of 1949 and RCW 82.48.100.

2. Subject Matter: Auctioneers of Jewelry-

Code and Session Citation: RCW 18.12.110, Laws of 1953, ch. 239.

Title: An Act relating to sales of jewelry and appliances at auction; defining terms; providing for the issuance of licenses; prescribing fees therefor; and providing penalties.

3. Subject Matter: Collection Agencies

Code and Session Citation: RCW chapter 19.16, Laws of 1929, ch. 90.

Title: An Act relating to collection agencies and providing for a bond for the operation thereof.

4. Subject Matter: Commission Merchants

Code and Session Citation: RCW 20.01.210, Laws of 1959, ch. 139.

Title: An Act relating to agricultural products; ...

5. Subject Matter:. Electricians

Code and Session Citation: RCW 19.28.010, Laws of 1935, ch. 169.

Title: An Act relating to, and prescribing the manner of installation of electrical wires and equipment, regulating sales thereof [,] providing for the licensing and bonding of those engaged therein, prescribing the powers and duties of certain officials in connection therewith, providing penalties, and making an appropriation, ...

6. Subject Matter: Insurance

Code and Session Citation: RCW Title 48, Laws of 1947, ch. 79.

*505Title: An Act to provide an Insurance Code for the State of Washington; to regulate insurance companies and the insurance business; ...

7. Subject Matter: Motor Vehicles

Code and Session Citation: RCW Title 46, Laws of 1961, ch. 12.

Title: An Act relating to vehicles; providing for the regulation and licensing thereof and of persons in relation thereto; ...

8. Subject Matter: Public Utility — Transportation

Code and Session Citation: RCW Titles 80 and 81, Laws of 1961, ch. 14.

Title: An Act Relating to public service properties and utilities, providing for the regulation thereof.....

9. Subject Matter: Real Estate Brokers

Code and Session Citation: RCW Chapter 18.85, Laws of 1941, ch. 252.

Title: An Act relating to real estate brokers and real estate salesmen; providing for the regulation, supervision and licensing of real estate brokers and real estate salesmen, providing for the enforcement of this act and penalties for its violation, establishing the office of Real Estate Director, defining his powers and duties, ...

10. Subject Matter: Weighmaster

Code and Session Citation: RCW 15.80.080, Laws of 1961, ch. 11.

Title: An Act relating to agriculture and marketing; ...

11. Subject Matter: Small Loan Companies

Code and Session Citation: RCW 31.08.030, Laws of 1941 ch. 208.

Title: An Act to define, license, and regulate the business of making loans in the amount of five hundred dollars ($500) or less;

12. Subject Matter: Farm Labor Contractors

Code and Session Citation: RCW 19.30.040, Laws of 1955, ch. 392.

Title: An Act relating to licensing, and regulating farm labor contractors; ...

13. Subject Matter: Grain Warehousemen

Code and Session Citation: RCW 22.08.170, Laws of 1955, ch. 300.

Title: An Act relating to public warehouses; ...

14. Subject Matter: Storage Warehouses and Warehousemen

Code and Session Citation: RCW Chapter 22.20, Laws of 1949, ch. 128.

Title: An Act relating to storage warehouses and the regulation thereof, ...

January 27, 1966. Petition for rehearing denied.'