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AGO 1950 No. 334 - September 07, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

YELLOW OLEO MARGARINE

Where a local firm buys yellow oleo margarine outside of this State, causes the same to be shipped and stored in its warehouse within the State, then reships in original packages outside the State, such activities are protected under the commerce clause of the U. S. Constitution and under Williams v. Hamilton, 194 Wash. 64, 76 P. (2d) 1029.

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                                                               September 7, 1950

Honorable Mortimer Frayn
Legislative Representative, 43rd District
2622 Boylston, North
Seattle, Washington                                                                                                              Cite as:  AGO 49-51 No. 334

Dear Sir:

            On August 29, 1950, you wrote us as follows:

            "I am advised that the Director of Agriculture of the State of Washington has recently threatened seizure and injunction proceedings against a local firm engaged in the importation and exportation of yellow oleo margarine.  I understand that it is the contention of said Director that Section 2 (2) of Chapter 13, Laws of 1949, prohibits importing and exporting the said product.

            "The firm in question buys yellow margarine outside of this state, causes the same to be shipped to and stored in its warehouse in Seattle, then reships the same in the original packages to Alaska.

             [[Orig. Op. Page 2]]

            "It seems to me that the matter involved is purely inter-state [[interstate]]commerce and that the Director of Agriculture of this state should not interfere with this business.  In this connection, please be referred to your opinion of May 27, 1949, to the Honorable Sverre N. Omdahl, Director of the Department of Agriculture [[Opinion No. 49-51-46]], wherein you held that the shipment of artificially colored oleo margarine through the Port of Seattle for export was in substance a transaction of inter-state [[interstate]]commerce.

            "As a member of the Legislature which passed the above mentioned Chapter 13, Laws of 1949, I am sure that it was never the intention of that body to interfere with a business of importing and exporting such as we have here concerned.

            "I respectfully request your opinion as to the legality of the transaction above outlined."

                                                                     ANALYSIS

            Our opinion of May 27, 1949 [[Opinion No. 49-51-46]], to which you refer, was issued before chapter 13, Laws of 1949 (6248-1 et seq. Rem. Supp. 1949) became effective.  Such opinion was issued on chapter 23, Laws of 1931, which was directly repealed by section 5, chapter 13, Laws of 1949.

            Section 8 of chapter 23 contained a proviso reading as follows:

            "* * * Provided, That the provisions of this section shall not apply to the receipt or sale of butter substitutes which are exempt from state tax under the constitution and laws of the United States."

            Section 13 carried a provision even broader as to exemption from inter-state [[interstate]]commerce.

            As above mentioned, chapter 23, and its amendment, chapter 136, Laws of 1937, were directly repealed by the 1949 act.

             [[Orig. Op. Page 3]]

            It is to be noticed that chapter 13 does not contain any similar or comparable provision.  We cannot regard such omission as of any binding importance.  The case ofWilliams v. Hamilton, 194 Wash. 64, 76 P. (2d) 1029, was cited in our opinion of May 27, 1949 [[Opinion No. 49-51-46]].  While the above quoted proviso was mentioned in such opinion, it would seem to us that the basis of the holding of the Supreme Court in such case was Article I, section 8, clause 3, of the Constitution of the United States, which gives to Congress power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.  While the Williams decision related to the collection of a tax and imposition of penalties imposed by chapter 23, supra, we cannot believe that the principles of such decision is not equally applicable to activities under chapter 13,supra.

            We have no knowledge as to what may be the reasons for the action of the Director of Agriculture in threatening to seize and impose injunction proceedings against the local firm you mention.  We can conceive of various activities which such firm might be engaged in within the State of Washington and relating to yellow oleo margarine which might conceivably subject him to such action on the part of the Director.  We express no opinion as to any such action which the Director may contemplate.  Section 3, chapter 13, gives the Director certain supervisory and rule making power.  We have no knowledge as to whether the Director has acted thereunder.

            Subject to the possible exceptions mentioned in the last preceding paragraph, we hold that, if the local firm you mention buys yellow margarine outside of this state and causes the same to be shipped and stored in its warehouse within the state, and then reships the same in the original packages to Alaska, or to any other point outside the state, and does no more than that, then, it would seem to us, that such actions by the local firm are protected under the decision in theWilliams case,supra.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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