State Ex Rel. Gebhardt v. Superior Court

I have no great concern as to the result of the foregoing opinion, for even though it voids the amendatory portion of chapter 42, p. 100, Laws of 1941, relating to the reemployment of teachers, that, if thought unfortunate, can be cured by the coming session of the legislature. But the opinion lays down general rules affecting the mechanics of legislation which seem fraught with consequences not curable by legislation. If the majority opinion be correct, it will be difficult, and in some cases perhaps impossible, to make more than one amendment to an existing act during any one legislative session.

In the present instance, the legislative journals show that house bill No. 66, designed to amend the existing law concerning the reemployment of teachers, and which was ultimately passed as chapter 42, Laws of 1941, and house bill No. 78, designed to amend the existing law to permit school districts to act jointly in purchasing supplies, and which was later passed as chapter 179, Laws of 1941, were introduced in the house on January 24, 1941, by Julia Hansen, chairman of the house committee on education. On that day, both bills were, by vote of the house, referred to that committee, and both were reported back by that committee on January 29, with the recommendation that they do pass. They ultimately went to the senate together. The enabling clauses of the bills were identical:

"SECTION 1. That section 1, chapter 131, Laws of 1939 (section 4776 of Remington's Revised Statutes), be amended to read as follows:"

Each of the bills was drafted with scrupulous regard for § 37, Art. II of the constitution, requiring that an act revised or a section amended shall be set forth at full length. Bill No. 78 had an emergency clause when introduced.

Subsequently, due possibly to the fact that bill 78 required a typographical amendment, or possibly, because it bore a higher number, the two bills, which had a common origin and had long traveled together, became separated. Bill 66 was passed by the house on February 4, by the senate on February 26, and, as provided by the constitution, became a law when approved by the governor on March 5, as chapter 42, Laws of 1941. Bill 78 passed the house on February 6, the senate on March 11, and was approved by the governor on March 24, as chapter 179, Laws of 1941. If chapter 42, instead of chapter 179, had been accidentally delayed in the legislative mill, it would, according to the reasoning of the majority, now be the law, and chapter 179 would be invalid.

Clearly, bills Nos. 66 and 78 were not alternative bills. As we have seen, one affected the hiring of teachers; the other, the purchase of supplies by school districts. It was obviously not a case where the committee on education wanted the one change in the law or the other. It wanted both, and the fact that it wanted one of them to become effective immediately, as indicated by the emergency clause in bill 78, is completely immaterial.

What was the committee on education to do in that situation, or rather, what are future legislative committees to do when faced by similar circumstances? If two amendments to a section are contained in two different bills, only that last enacted can, under the majority opinion, survive, no matter if they concern such utterly unrelated things as employing teachers and joint purchase of supplies. It might, of course, be possible to make two amendments to the same section at the same session of the legislature if one could be first introduced and passed, and, then, the second introduced, setting forth the first at full length and adding the desired amendment. But the legislative sessions are too short to admit of such procedure. It has been said that both amendments might have been included in one bill. I would not go so far as to say that in the instant case, such a procedure would have violated the constitutional provision that "no bill shall embrace more than one subject, . . ." But it would have been contrary to its spirit and wholly repugnant to sound legislative practice; for there might well have been a number of members of the legislature quite favorable to the proposed amendment in regard to the reemployment of teachers, and, yet, so opposed to the proposed joint purchase of supplies that they would have voted against the joint bill. On the other hand, there might have been members very favorable to joint purchase of supplies, but staunchly opposed to the change regarding reemployment of teachers, and for that reason would vote against a joint bill. Thus, two desirable amendments, which would have passed if submitted separately, would both fail if submitted in a single bill.

From a consideration of the legislative history of chapters 42 and 179, Laws of 1941, a matter but little regarded by the majority, I have no doubt but that the legislature desired, and intended, that both chapters should become law. That chapter 42 became the law of the state when the governor approved it on March 5th, cannot be disputed. It could not thereafter be rendered invalid by the legislature, except by repeal. Certainly, there was no express repeal. Nor, in view of the fact that it dealt with the reemployment of teachers, while 179 dealt with joint purchase of supplies by school districts, can I find any ground to hold that it was repealed by implication. In the last analysis, the majority, by the employment of technical rules, ascribe an intention to the legislature which, I am convinced, it did not have. I assume that a repeal by implication must be intentional. I can see no rational ground for even suspecting that, by enacting chapter 179, the legislature intended to repeal its previous enactment regarding teachers' contracts, for there is no conflict or repugnancy between the two enactments.

In conference, some of the members of the court conceded,arguendo at least, that there was no repugnancy, but contended that a repeal by implication follows from the fact that chapter 179 omits the following language of chapter 42:

"Every teacher, principal, supervisor or superintendent holding a position as such with a school district, whose employment contract is not to be renewed by the district for the next ensuing term shall be notified in writing on or before April 15th preceding the commencement of such term of the decision of the board of directors not to renew his or her employment and the reason or reasons therefor, and if such notification is not timely given by the district, the teacher, principal, supervisor or superintendent entitled thereto shall be conclusively presumed to have been reemployed by the district for the next ensuing term upon contractual terms identical with those which would have prevailed if his or her employment had actually been renewed by the board of directors for such ensuing term: Provided, That in union high school districts said written notification shall be given on or before April 30th preceding the commencement of the next ensuing term."

If the bill (78), which became chapter 179, had been introduced and passed after chapter 42 was enacted and had become the law, the omission of the language, above quoted, would justify an inference that the legislature intended to strike it from the statutes. Under the facts of this case, such an intention cannot possibly be imputed to the house. When the house passed chapter 179, or rather bill 78, which became chapter 179, there was no chapter 42 in existence, for the house passed bill 78 on February 6, and bill 66, which ultimately became chapter 42, was not passed by the senate until February 26, nor was it approved by the governor until March 5. Here, then, and although repeals by implication are not favored in law, the house is held by the majority to have participated in impliedly repealing an act nearly a month before it was passed.

No one disputes that chapter 42, Laws of 1941, was validly enacted. I cannot find that it has been repealed. I, therefore, dissent from the majority's holding that the provisions of that act, hereinabove quoted, are no longer a part of our statute law.

MILLARD, J., concurs with ROBINSON, C.J.