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AGO 1950 No. 332 - September 14, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

ASSESSMENT ON APPLES

The assessment imposed by sections 9 and 13, chapter 195, Laws of 1937, should be levied against the weight of apples and container, if a container be used.

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                                                              September 14, 1950

Washington State Apple Advertising Commission
c/o Cheney & Hutcheson
Miller Building
Yakima, Washington                                                                                                              Cite as:  AGO 49-51 No. 332

Dear Sir:

            We have your letter of August 31, 1950, in which you ask the following question:

            Should the assessment imposed by section 9, chapter 195, Laws of 1937 (2874-9 Rem. Rev. Stat. Supp.), and by section 13 of the same chapter (2474-13 Rem. Rev. Stat. Supp.), be levied against the weight of apples and container, or should it be imposed upon the net weight of apples only, without the weight of the container being included?

            The conclusions reached may be summarized as follows:

            The assessment is imposed against the gross billing weight of apples, which includes the weight of the container.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            Chapter 195, Laws of 1937, (2874-1 et seq. Rem. Rev. Stat. Supp.) created the Washington State Apple Advertising Commission, and gave it certain powers and duties.  Section 3 of chapter 195, Laws of 1937, was amended by chapter 191, Laws of 1949 (2874-3 Rem. Supp. 1949) in respects immaterial herein.  Section 9 (a), chapter 195, Laws of 1937, provides:

            "There is hereby levied and imposed upon all apples grown in 1937 and annually thereafter, an assessment of two cents (2¢) on each one hundred (100) pounds gross billing weight of apples; payable when shipped, whether in bulk or loose in boxes or any other container, or packed in any style package:  Provided, That the provisions of this act shall not apply to apples shipped to any processing plant for processing manufacturing purposes; * * *"

            Section 13 provides for the advertising of Washington grown apples, and, among other things, provides a modus operandi under which the Commission would be authorized to increase the assessment provided by section 13 (a),supra, to:

            "* * * a sum not exceeding the sum of six cents (6¢) for each one hundred (100) pounds gross billing weight of apples, whether shipped in bulk, loose in boxes or any other container, or packed in any style package:  * * *"

            We understand that the assessment provided for by section 9, supra, has been increased to the maximum permissible under section 13, supra.

            It would appear from your letter that the Commission has been using the "gross billing weight" as the standard from which to fix the amount of the assessment.  The matters in dispute are perhaps best summarized in your letter as follows:

             [[Orig. Op. Page 3]]

            "A single apple grower in the Wenatchee area has raised the following question and through his attorney has requested an opinion from your office.  He contends that as he ships quite a portion of his crop loose in wooden apple boxes rather than in packed boxes, that he is discriminated against because the tare is heavier per ton of net apples than if the same were in packed boxes.  He contends that the phrase 'of apples' nullifies the words 'gross billing weight' and infers that the assessment should be on the net weight of the apples themselves regardless of the use of the words 'gross billing weight.'  * * *"

            It is a rule of statutory construction "that an act must be so construed that every part and every legislative expression will be given effect * * *."  Yakima Fruit Growers Association v. Henneford, 187 Wash. 252, 60 P. (2d) 62;Pease v. Stephens, 173 Wash. 12, 21 P. (2d) 294.

            Chapter 195,supra, related to the apple industry only.  The same was true of chapter 191, Laws of 1949.  The words we must construe are "gross billing weight of apples."  We cannot regard the phrase "of apples" as of any effect other than as limiting the type of commodity against which the assessment is to be levied.  Possibly, the phrase "of apples" is unnecessary when we consider the fact that chapter 195,supra, is limited to "apples" only.  It would seem, however, that the drafters of chapter 195, supra, inserted the phrase "of apples" very properly, and to make the entire sections 9 and 13 speak exactly what the drafters intended.  We cannot believe that the fact that the words "of apples" is placed after the three words "gross billing weight" is entitled to any weight whatsoever.  Such conclusion is also borne out by the language of section 9 (a), which follows:

            "* * * whether in bulk or loose in boxes or any other container, or packed in any style package.  * * *"

            Section 13 contains the same identical language, with the exception that the word "shipped" is inserted immediately preceding the words "in bulk."

             [[Orig. Op. Page 4]]

            We understand that the phrase "gross billing weight" is a phrase well known and in general usage in the shipping world.  It means the weight which is given to the article or articles shipped via the transportation company, regardless of the mode of transit, and on which the shipping charge is based.  Such shipping charge usually, if not universally, includes both the weight of the commodity shipped and of the container.  Such weight is usually shown by the bill of lading, but is not necessarily so.  The waybill, which goes with the shipment and shows the route, freight charges, etc., shows such weight.  The distinction between the bill of lading and the waybill is explained in S. Patti Construction Company, Inc. v. Union Pacific R. Co., 7 Fed. Rules Dec. 728 [[7 F.D.R. 728) or (7 Fed. R.D. 728)]].

            The word "gross" means whole, entire, total, without deduction.  18 Words & Phrases, Permanent Edition, page 697.  The word "net" means clear of, or excluding all tare or the like, as, net weight.  See 28 Words & Phrases, Permanent Edition, page 514 et seq.  As used here the word "billing" or "to bill" means the same thing as "to ship."  If the legislature had intended to allow deductions, it could have used "net billing weight of apples" or "net shipping weight of apples."  The legislature chose to use the words "gross billing weight of apples."  It would seem to follow, therefore, that by the use of that particular phrase the legislature must have intended that the assessment should be computed upon the weight of the apples, together with the weight of the package or other container, if any container whatever is used.

            There would seem to be no discrimination in the method adopted by the Commission for fixing the amount of the assessment.  It is optional with the shipper as to what type of container he may use.

            Apparently, the Commission has used the "gross billing weight" as the standard from which to fix the assessment since the commencement of operations by the Commission.  The Commission has now been in operation for many years.  While such a ruling or system so adopted by a Commission which has the enforcement of an act under its jurisdiction, is not necessarily binding upon the court, it will not be lightly disregarded.

             [[Orig. Op. Page 5]]

            We are, therefore, forced to the conclusion that the Commission should continue to use the "gross billing weight" as the standard from which to compute the assessment fixed by sections 9 and 13, chapter 195, Laws of 1937.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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