Statutory Compilations of Washington

• Publication year: 1988

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 2WINTER 1989

Statutory Compilations of Washington

Kelly Kunsch

The past is continually needed to explain the present, and the whole to explain the part.(fn1)

Edward Burnett Tylor

This Article surveys the statutory compilations of Washington. Although Washington's laws have evolved through a gradual process, compilations of these laws have had a more sporadic development. This development culminated in the Revised Code of Washington (RCW), which has remained relatively uniform since its first publication in 1951. Still, familiarity with its antecedents remains important today.

One important function of any historical overview is to provide a framework upon which to lay the present. Tracing the development of the RCW can provide insight into the Code itself, and perhaps into the particular provisions of which it consists.

Another reason to study statutory history is that the applicable law in a given instance may predate the RCW. For example, in construing a will, it is generally said that the law that was in force when the will was executed is the law that determines the intention of the testator.(fn2) For wills written before 1951, then, attorneys may need to consult some of the pre-RCW codes.

Finally, a common problem in law today is that of determining the legislative intent of a statute. There is scant legislative history in Washington, especially for laws enacted in decades past. Some of the older codes supply contemporaneous sources for provisions that may shed light on what was originally intended by the wording in a particular statute.

In this Article, each code is briefly described to highlight its most prominent characteristics. The purpose of these descriptions is to inform the user of the completeness of the Code to which he or she is referring, as well as to suggest possible utility for the Code.

For background, a brief history of Washington and its governance precedes the discussion.

I. Before Creation of Washington Territory

Prior to 1848, the region of what is now the state of Washington had no formal government. Although the region was a part of Oregon Territory, that area was not a recognized "United States Territory" at the time. As a result, not only was there no formal government in the region, but the settlers swore allegiances to different countries. The situation was further complicated by the presence and governance of the native Indians, and their interrelationships with the settlers.

In truth, if not for the issue of dominion, there was probably little need for a government due to the paucity of settlers.(fn3) However, since both Great Britain and the United States had an interest in the region's resources, governance and its implications became an issue. The response was a treaty between the two countries, signed October 20, 1818, providing for joint occupation of Oregon Territory for ten years.(fn4) Some authors contend that this treaty was the result of ignorance on the part of the signatories.(fn5) Virtually all claims to the territory at the time were in favor of Great Britain {e.g., discovery, length of settlement, number of settlers), as were alliances with the Indians through trade relations and marriage. But since the territory was so remote from the seats of both governments, it is possible that neither understood its true bargaining position. Ultimately, the ten years gave the United States an opportunity to establish better claims to the territory.

In spite of and shortly after the 1818 treaty, the British Parliament enacted legislation imposing the laws of upper Canada (already under British dominion) upon the Oregon Territory.(fn6) Enforcement of these laws was left to officials of the Hudson's Bay Company.

In 1827, the treaty of joint occupancy between Great Britain and the United States was renewed for an indefinite number of years, with either government being free to withdraw upon one year's notice.(fn7)

II. Provisional Government: 1843

Diplomatically, little happened for the next twenty years; but during that interval, American settlers began to infiltrate Oregon Territory. Eventually these settlers petitioned the United States Congress to establish a territorial government.(fn8) In July of 1843, the settlers set up a provisional government during what is now known as the Champoeg Meeting. The "organic laws" they adopted were prefaced by the preamble: "We, the people of Oregon Territory, for the purpose of mutual protection and to secure peace and prosperity among ourselves, agree to adopt the following laws until such time as the United States of America extend their jurisdiction over us."(fn9) As can be seen, besides establishing a system of government, the instruments drawn up by the settlers at Champoeg also sent a message to the world regarding their allegiance. Still, there remained a substantial faction of British loyalists in the region, many of whom refused to recognize any authority in the provisional government. However, no confrontations occurred to challenge the provisional government and the actions of the government consisted almost entirely of revising its "organic laws" and petitioning the United States Congress to create a territorial government according to the usual forms of Congressional action.(fn10) No territorial government could be established, though, until the question of sovereignty over Oregon Territory was settled.

III. Oregon Territory: 1848

Finally, on June 15, 1846, Great Britain and the United States agreed upon the boundary between their possessions west of the Rocky Mountains.(fn11)

Because of the political controversies (dealing for the most part with the slavery issue in newly settled regions), it was not until August 14, 1848, that Congress established a territorial government in Oregon.(fn12) All acts of the territorial legislature had to be submitted to Congress and, if disapproved, became "null and void."(fn13)

It was another five years before, in 1853, Congress created Washington Territory.(fn14) At that time, the territory included all the area north of the Columbia River and extended east to the crest of the Rockies. Thus, it included parts of present day Idaho and Montana. Not until March 3, 1863, when Congress created Idaho Territory, were the boundaries of what is now the State of Washington established.(fn15)

IV. After Creation of the Washington Territory: 1853

Washington's Organic Act maintained the existing laws of the Territory of Oregon until such time as those laws were repealed or amended by future legislation.(fn16) Such repealing legislation was, in fact, enacted in 1856.(fn17) At least one commentator, however, suggests that such legislation may have been null and void.(fn18) This is supported by section 1952 of the 1873 Revised Statutes of the United States, which continued to recognize the force of the prior Oregon laws. Additionally, the repealing statute has not been included in any of the state codes. Consequently, the question of whether the laws of Oregon Territory remain authoritative in Washington is unsettled. Furthermore, by incorporating Oregon's territorial laws, Washington indirectly adopted the laws of Iowa Territory,(fn19) incorporated by Oregon in two different forms: first as the statute laws of Iowa Territory,(fn20) and later as the Revised Laws of Iowa of 1843.(fn21)

The first session of the territorial legislature convened in Olympia, Washington, on February 28, 1854. Three days later, legislators officially recognized the need for a compilation of existing laws by passing "an act to provide for the appointment of a board of commissioners to prepare a code of laws for the Territory of Washington."(fn22)

Session laws for 1854 were published in a volume entitled Statutes of the Territory of Washington: Being the Code Passed by the Legislative Assembly, at their First Session begun and held at Olympia, February 28th, 1854. This first statutory compilation of Washington included a copy of the Declaration of Independence; the United States Constitution; the 1846 Treaty with Great Britain concerning borders; the Organic Act; the Donation Act (giving acreage to white settlers designated by the Surgeon General) and amendments; an abstract of the laws of the United States in relation to the naturalization of aliens; the statutes of general application; and a section of private and local laws. Included in this compilation was a sixty-five page index. Compilation of the acts was in no particular order. Still, it was referred to as the Code of 1854.

According to the Organic Act, the legislative assembly was to meet annually. Each year, the legislature published the laws enacted during that session (session laws) without any attempt at topical arrangement. The volumes did include, however, an index for the laws of that session.

The laws of 1859-60 were the first to resemble a true code. This was due to the passage of lengthy acts that included a variety of items within a general subject (e.g., the Civil Practice Act or the Criminal Practice Act). Periodically, the legislature revised these major portions of the Code of 1854, and the publication of its session laws for those years also resembled a code format. When the legislature revised these major acts, it reenacted them in their entirety with the subsequent amendments.(fn23) It is important to remember, however, that these volumes only included laws enacted or...