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AGO 1953 No. 151 - September 23, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

HIGHWAYS ‑- LOGGING VEHICLES ‑- SPECIAL TOLERANCE PERMITS ‑- GROUNDS FOR CANCELLATION. 

A special permit issued under RCW 46.44.047, as amended by section 10, chapter 254, Laws of 1953, must be cancelled upon first violation of the terms or conditions of the permit. 

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                                                                October 23, 1953 

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 151
 

Attention:  Lorenz Goetz, Secretary
Gentlemen: 

            By letter under date of October 1, 1953, you have requested the opinion of this office upon the following question: Must a special log tolerance permit issued under the provisions of section 10, chapter 254, Laws of 1953, be cancelled upon the first violation? 

            It is our opinion that such a special permit must be cancelled upon the first violation.

                                                                     ANALYSIS 

            RCW 46.44.047, as amended by section 10, chapter 254, Laws of 1953, provides for maximum tolerances which may be allowed by special permit, in excess of the gross weight requirements of RCW 46.44.040, 46.44.042, and 46.44.044, for three‑axle truck-tractor and two-axle pole trailer combinations engaged in hauling logs.  The permit is to be issued by the director of highways, 

            "* * * under such rules, regulations, terms and conditions prescribed by the state highway commission." 

             [[Orig. Op. Page 2]]

            The cancellation provision states: 

            "Upon the third conviction or for violation of the terms and conditions of the special permit, the special permit shall be cancelled." 

            This language is mandatory, requiring cancellation upon the occurrence of either of two events:  a third conviction, or a violation. 

            1. There is no doubt that the legislative intent is set out in this language.  It seems clear that it was not used inadvertently.  Section 10 is derived from Senate Bill 459, which originally contained the following:

            "Upon the third conviction of violation of the terms and conditions of the special permit, the special permit shall be cancelled * * *" 

            Upon the advice of the Standing Committee on Roads and Bridges, the Senate amended the foregoing to read as it now does in RCW 46.44.047.  Senate Journal, 1953 Sess., p. 525.  The House then amended the sentence again, in this way: 

            "For violation of the terms and conditions of the special permit, the special permit shall be cancelled." 

            Senate Journal, 1953 Sess., p. 811.  The Senate then requested the House to recede from this amendment, which was done, and the bill was passed with the sentence returned to its present form.  Senate Journal, 1953 Sess., pp. 812, 826, 827.  The legislature thus rejected two different wordings for this provision; one would have made the sole condition precedent to cancellation a third conviction of violation of the terms and conditions of the permit, and the other would have made the sole condition precedent a single violation of those terms and conditions. 

            2. We cannot attribute unnecessary or redundant language to the legislature.  It would be useless to require cancellation of a permit for a third conviction of violationof its terms, while requiring cancellation ‑ as the statute does ‑ for the first such violation.  We are forced to conclude that the three convictions mentioned by the provision in question arenot convictions for violations of the terms of the permit. 

             [[Orig. Op. Page 3]]

            3. The cancellation sentence is not as specific as to procedure as it might have been.  Presumably a permit is to be cancelled by the person authorized to issue it.  Use of the word "shall" permits no discretion.  That this is the legislative intent is borne out by the history of RCW 46.44.047 (section 10 of chapter 254) and of RCW 46.44.097 (section 14).  Reference to the Senate Journal as cited above shows that section 14 of Senate Bill 459 as originally introduced, contained the following language: 

            "Any state highway patrol officer who shall find any person operating a vehicle in violation of the conditions of a special permit issued underthis chapter may confiscate such permit and forward the same to the state highway commission whichmay return it to the permittee or revoke, cancel or suspend it without refund.  The state highway commission shall keep a record of all action taken upon permits so confiscated and if a permit shall be returned to the permittee the action taken by the commission shall be endorsed thereon.  Any permittee whose permit is suspended or revoked may upon request receive a hearing before the commission or person designated by the commission.  The commission after such hearing may reinstate any permit or revise the previous action."  (Italics supplied) 

            Upon recommendation of the Roads and Bridges Committee, the Senate substituted "RCW 46.44.095" for "this chapter" in the quoted paragraph.  The House then added "or RCW 46.44.047" following "RCW 46.44.095" by amendment.  The Senate requested the House to recede from this amendment, the House complied, and the bill was passed; so that only violations of special permits issued under RCW 46.44.095 are now covered by the quoted paragraph.  From this it is clear that the legislature intended to give the commission no discretion in regard to permits issued under RCW 46.44.047.  Nor has any discretion been given to the arresting officer concerning such permits, as may be seen from the foregoing history.  In addition, RCW 46.44.047 formerly contained this provision: 

            "* * * the arresting officer may, within his discretion, permit the operator to proceed with his  [[Orig. Op. Page 4]] vehicle or vehicles in combination without penalty or the removal of excess weight, but this discretionary action by the arresting officer shall in no manner relieve the operator of the combination of vehicles of any penalty or fee imposed by this title for such excess weight.  * * *
 

            "It being the intention of the legislature to recognize that occasional weight discrepancies in cargo will occur, and to provide the arresting officer with authority and discretion to determine the same; but to prevent the habitual and consistent loading of vehicles above the licensed gross weight of the vehicle provided for in this title." 

            The second paragraph quoted above has been entirely deleted from RCW 46.44.047 by the 1953 amendment, although a similar provision is retained in RCW 46.44.046 (section 3, chapter 254).  RCW 46.44.047 now contains only one sentence as to the discretion of the officer: 

            "* * * In the event the gross weight is in excess of the weight permitted by law the officermay, within his discretion, permit the operator to proceed with his vehicles in combination."  (Italics supplied) 

            Possibly this discretion is the same as that given by RCW 46.44.100, which permits the officer to allow an operator to proceed without unloading the overweight portion of an unlawful load.  Assuming this is true, RCW 46.44.047 gives the officer no other discretion.  It follows that he must report violations of the terms and conditions of special permits.  A load in excess of the weight allowed by the permit of itself constitutes a violation.  The same would be true for violation of any other term or condition which might be imposed; for example, that the permit would be good only upon specified highways. 

            RCW 46.44.047 states that: 

            "The chief of the state patrol, with the advice of the state highway commission, may make reasonable rules and regulations to aid in the enforcement of the provisions of this section." 

             [[Orig. Op. Page 5]]

            We think that because cancellation is mandatory for a violation, one such regulation should be that an officer must report violations to the commission so that cancellation may be accomplished.  In view of the foregoing analysis, such a report would have to be made even though no formal regulation to that effect had been issued.  Otherwise, a conviction under RCW 46.44.097 might conceivably be had for violation of the terms of a permit without notice to the commission.  A violation would have occurred without cancellation, contrary to the express provision of the statute. 

            We regret the length of the foregoing opinion; but in view of the very general terms of the statute we have deemed it appropriate to set out in some detail the reasons for our conclusion, together with comment upon the procedure to be employed in its enforcement. 

            We conclude that a special permit issued under RCW 46.44.047 must be cancelled upon the first violation of the terms of the permit. 

            We sincerely hope that our analysis will prove to be of assistance to you. 

Very truly yours, 

DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General

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