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Bob Ferguson

AGO 1955 No. 138 -
Attorney General Don Eastvold


(1) Commodity commission formed under Agricultural Enabling Act does not have authority to pay funds or delegate powers and duties to private multistate organization organized for same purposes.

(2) Such Commissions may not pledge funds to same organization for purposes of national advertising in conjunction with other states.

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                                                              September 28, 1955

Honorable Sverre N. Omdahl
Director of Agriculture
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 138

Attention:  Phyllis Dolvin Schoedel, Marketing Act Administrator

Dear Sir:

            In your recent letter, previously acknowledged, you have requested our opinion concerning two questions relating to the Agricultural Enabling Act, chapter 191, Laws of 1955.  The questions are:

            "(1) After the formation of a commodity commission, may such commission funds be paid by the commission to another organization representative of several other states if the organization is working in cooperation with the commission to accomplish the same purposes for which the commission was formed?

            "(2) Under Section 16 of the Act, may a commission created under a marketing order expend moneys in national advertising and selling programs directed towards exporting in cooperation with other states and may the commission  [[Orig. Op. Page 2]] pledge funds for such a purpose?"

            In our opinion your questions must be answered in the negative.


            1. The Washington Agricultural Enabling Act, chapter 191, Laws of 1955 authorizes the formation of commodity commissions to carry out one or more of the following purposes under section 3 of the act:

            "(1) To establish plans and conduct programs for advertising and sales promotion, to maintain present markets or to create new or larger markets for any agricultural commodity grown in the state of Washington;

            "(2) To provide for carrying on research studies to find more efficient methods of production, processing, handling and marketing of any agricultural commodity;

            "(3) To provide for improving standards and grades by defining, establishing and providing labeling requirements with respect to the same;

            "(4) To investigate and take necessary action to prevent unfair trade practices."

            A commodity commission formed in conformity with the provisions of the act would be in the nature of a variation of a public or quasi-public corporation and as such would be an instrumentality of the state.  As is said in American Jurisprudence, Agriculture, section 14:

            "* * * A voluntary unincorporated association set up by a public act for the aid or regulation of particular matters connected with agriculture, which acts independently of the ordinary departments of government, does not by reason of that fact, gain a separate identity, but is a governmental agency; * * *."

             [[Orig. Op. Page 3]]

            Generally speaking administrative agencies have only such powers and duties as are conferred by the legislature in the statutory grant creating the agency or such powers and duties as may be necessarily implied therefrom.  American Jurisprudence, Public Administrative Law, section 26, puts it this way:

            "Administrative boards, commissions and officers have no common law powers.  Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication."

            Section 14 sets forth the powers of the Commission as follows:

            "Sec. 14. Every marketing commission shall have such powers and duties in accordance with provisions of this act as may be provided in the marketing order and shall have the following powers and duties.

            "(1) To elect a chairman and such other officers as determined advisable;

            "(2) To adopt, rescind and amend rules and regulations reasonably necessary for the administration and operation of the commission and the enforcement of its duties under the marketing order;

            "(3) To administer, enforce, direct and control the provisions of the marketing order and of this act relating thereto;

            "(4) To employ and discharge at its discretion such administrators and additional personnel, attorneys, advertising and research agencies and other persons and firms that it may deem appropriate and pay compensation to the same;

            "(5) To acquire personal property and lease office space and other necessary real property and transfer and convey the same;

             [[Orig. Op. Page 4]]

            "(6) To institute and maintain in its own name any and all legal actions, including actions by injunction, mandatory injunction or civil recovery, or proceedings before administrative tribunals or other governmental authorities necessary to carry out the provisions of this act and of the marketing order;

            "(7) To keep accurate records of all its receipts and disbursements, which records shall be open to inspection and audit by legal agencies of the state and make annual reports therefrom to the state auditor;

            "(8) Borrow money and incur indebtedness;

            "(9) Make necessary disbursements for routine operating expenses:

            "(10) Such other powers and duties that are necessary to carry out the purposes of this act."

            An analysis of the foregoing powers and duties read together with the purposes which marketing orders may contain as provided for in section 3 hereinabove quoted leads us to the ultimate conclusion that the legislature did not contemplate the granting of such power as outlined in your first question.  Our conclusion is further bolstered by a well-known rule of law which is stated in American Jurisprudence, Public Administrative Law, section 73, as follows:

            "It is a general principle of law, expressed in the maxim 'delegatus non potest delegare,' that a delegated power may not be further delegated by the person to whom such power is delegated."

            2. We do not feel that the powers and duties conferred by the Act on commodity commissions could be interpreted to imply the granting of such a power as is contemplated in your second question.  Apparently the legislature did not deem it necessary or advisable that commissions formed under the Agricultural Enabling Act should have that power.  Had they deemed  [[Orig. Op. Page 5]] it so they would have specifically set forth this power in language as unmistakable as that found in an analogous act which they passed in 1939 in establishing the Dairy Products Commission.  This language is set forth in RCW 15.44.060, subsection (7) as follows:

            "(7) Make in its name such advertising contracts and other agreements as are necessary to promote the sale of dairy products on either a state or national basis.  (Emphasis supplied.)

            We hope that the foregoing analysis will prove helpful to you.

Very truly yours,

Attorney General

Assistant Attorney General