Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 310 -
Attorney General Don Eastvold


A person operating a boat for hire, selling frozen herring for bait only, falls within the purview of RCW 75.28.310 and is required to obtain either a wholesale or retail fish dealer's license.

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                                                                 August 27, 1954

Honorable W. J. Beierlein
Representative, 30th District
112 E. Main Street
Auburn, Washington                                                                                                              Cite as:  AGO 53-55 No. 310

Dear Sir:

            You have requested our opinion upon five specific questions relating to the fisheries code.  The first question is:

            1. Does a person having a boat for hire, selling frozen herring for bait only, fall within the meaning of RCW 75.28.310 requiring certain persons to obtain a retail fish dealer's license?

            The last four questions relate to the constitutionality of particular sections of the fisheries code.

            We conclude that the first question should be answered in the affirmative, and that this office cannot properly consider the last four questions for the reasons hereinafter indicated.


            The last four questions will be disposed of first.  Each of these questions directs our attention to a particular section or sections of the fisheries code and asks whether or not the provision is constitutional.  It is a very familiar  [[Orig. Op. Page 2]] rule of constitutional law that every statute is presumed to be constitutional, and the burden of proving its invalidity rests upon the party claiming the contrary.  Gruen v. Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651, and authorities cited.  Once a statute is enacted, it possesses the binding force and effect stated therein, unless it is clearly in conflict with some specific provision of the constitution.  SeeGruen v. Tax Commission, supra, p. 7.

            Three of the statutes here in question are penal in nature, while the other questions the validity of the vesting of concurrent jurisdiction in justice courts and superior courts as to enforcement of the act.  It is quite apparent that the only way in which the invalidity of these provisions could be attacked would be as a matter of defense in a criminal proceeding.  This raises a question which we have considered before, regarding the propriety of a consideration by the Attorney General, of the constitutionality of an existing statute.

            One of the duties of this office is to defend validity of legislative acts against attack.  Unless the invalidity of a measure is apparent, or unless there be a risk of loss or damage to the public, we have been extremely reluctant to inquire into constitutional issues.  We have examined each of the statutes cited in the request and recognize no obvious constitutional infringement in any of them.  There is no urgency which would necessitate an examination of the statutes mentioned before they come before a judicial tribunal in the proper course.  For these reasons, we feel that it would be improper for us to review them at length at this time.  You are advised that all statutes cited in your letter are presumed to be constitutional until such time that a competent judicial tribunal may decide otherwise.

            The remaining question involves a construction of RCW 75.28.310 which provides, in part:

            "A retail fish dealer's license is required for any business in the state engaged in the selling of fresh, frozen, or cured food fish * * *" (Emphasis supplied)

            The question is whether a person operating a boat for hire, selling frozen herring for bait only, is engaged in the business of selling food fish within the meaning of the statute.

            RCW 75.04.040 defines "food fish" as follows:

             [[Orig. Op. Page 3]]

            "'Food fish' and 'shellfish' shall be construed to include any and all species of marine and fresh water life classified as such by statute or by the director."

            By general order No. 256, the director of fisheries has classified herring as "food fish" with no exceptions as to size or use.  Herring is a type of fish which is suitable for a variety of uses, including both human food and bait purposes.  It is obvious that packaged bait fish are neither intended to be, nor are they in fact, used for human consumption.  Nevertheless, the legislature has seen fit to vest in the director, the power to classify any fish as "food fish."  The matter having been placed within his exclusive discretion, his classification is determinative of the matter.  The law leaves no room for modification of such classifications except by the legislature, or by the director.

Very truly yours,

Attorney General

Assistant Attorney General