FISH - INTERPRETATION OF THE TERM 'FRESH FISH' AS USED IN CHAPTER 75.32 RCW

FISH - INTERPRETATION OF THE TERM "FRESH FISH" AS USED IN CHAPTER 75.32 RCW.

The term "fresh fish" as used in Chapter 75.32 RCW includes all fish which are not preserved in some manner and also includes fish to which labor has been applied that changes the characteristics from those normally present in like fish landed by fishermen.

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                                                              September 25, 1959

Honorable Milo Moore
Director, Department of Fisheries
4015 20th Avenue West
Seattle 99, Washington                                                                                                   Cite as:  AGO 59-60 No. 71

Dear Sir:

            We acknowledge your letter of July 24, 1959, in which you request the opinion of this office as to the meaning of the term "fresh fish" as used in chapter 75.32 RCW.  We believe that your question may be paraphrased as follows:

            (1) Does the term "fresh fish" as used in chapter 75.32 RCW, refer to all fish which are not preserved in some manner?

            (2) Does the term "fresh fish" as used in chapter 75.32 RCW, include fish which are not preserved but to which labor has been applied that changes the characteristics from those normally present in like fish landed by fishermen?

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            (1) Chapter 75.32 RCW imposes a tax upon the privilege of engaging in business in the fishing industry within the state.  The measure of this tax is related to the fresh and frozen food fish handled.

            For the purposes of this tax, the state is divided into two districts.  Those persons engaged in the business taxed within the Columbia river district,  [[Orig. Op. Page 2]] defined in RCW 75.32.010, pay a privilege fee measured by a charge per pound of the whole or round weight of the fresh and frozen fish and shellfish received and dealt with.  RCW 75.32.040.  Elsewhere, the tax is measured by a percentage applied to the primary market value of fresh and frozen food fish and shellfish.  RCW 75.32.020.

            In determining the meaning of the term "fresh . . . fish" as used in the statute, we must give these words their usual and ordinary meaning.  Pacific Northwest Alloys v. State, 49 Wn. (2d) 702, 306 P. (2d) 197;Miller v. Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863.

            In Webster's New International Dictionary, 2nd ed., the word "fresh" is defined as follows:

            "Newly produced, gathered, or made; hence, not stored or preserved, as by pickling in salt or vinegar, refrigeration, etc., . . ."

            InCross v. Seeberger, 30 Fed. 427, 428 (1887), the court determined that fish naturally frozen on being taken from the water were admissible duty free as "fresh fish."  The court distinguished fresh fish from processed fish, saying:

            "The words 'fresh fish' as used in paragraph 699, undoubtedly mean fish which have not been salted or subjected to any of the known processes for curing them, such as pickling, smoking, or drying; . . ."

            We therefore conclude that the term "fresh . . . fish" refers to fish which have not been preserved in any manner.  We believe that this conclusion affords the usual and ordinary meaning to this phrase as it is understood not only by the fishing industry, but also by the consumer.

            (2) You point out in your letter that fishermen customarily apply varying degrees of work to the fish prior to landing.  Trollers eviscerate fish prior to landing and gill-netters land fish in the whole.  Apparently the extent of work applied depends upon the gear used in taking the fish.  It is suggested that if trollers behead the fish in addition to evisceration, or if gill-netters eviscerate the fish prior to landing, these fish are no longer "fresh" within the meaning of chapter 75.32 RCW.  However, it is our conclusion that since this work does not preserve the fish, they remain fresh.  The suggested interpretation therefore implies a distinction based on the meaning of the word "fish" rather than "fresh," and might be valid if the legislature intended to measure the tax by the value of whole fish only.

            We conclude that the suggested interpretation would not afford the term  [[Orig. Op. Page 3]] "fish" its usual and customary meaning and would be contrary to legislative intent.

            In the case ofInterstate Commerce Commission v. Love, 77 F.Supp. 63, 67, the court discussed the meaning of the term "fish" under the act providing that carriers of fish need not be licensed by the Interstate Commerce Commission.  The court said:

            "Webster's Standard Dictionary defines 'fish' as 'the flesh of fish'.  The National Motor Freight Classification lists . . . round, beheaded, gutted, and filleted fish under the descriptive heading, 'Fish, fresh or frozen' for classification purposes.  Thus, when accorded its ordinary and commonly understood meaning, the meaning which is used and understood in transportation parlance, fish (including shellfish) includes fish in the various forms in which it is customarily shipped, . . ."

            We understand that the term "fish" as used in the fishing industry includes "round, beheaded, gutted and filleted fish."

            In addition to this conflict with the common meaning of the term, such an interpretation is contrary to the express intention of the legislature.  The purpose of chapter 75.32 RCW is set forth in RCW 75.32.020, which provides as follows:

            "In addition to all other taxes, licenses or fees provided by law there shall be paid to the state of Washington by those engaged in the fishing industry in this state the privilege fees as provided for in this chapter."

            This express statement of legislative intention to tax those engaged in the fishing industry in the state precludes any interpretation which relates the applicability of the tax to the whim of the fisherman in removing the head or otherwise landing fish in a condition varied from the norm for his particular gear.

            In conclusion, therefore, it is our opinion that the term "fresh fish" includes fish which are not preserved but to which labor has been applied that changes the characteristics from those normally present in the fish when caught.  We suggest that whenever a particular question arises involving the term "fresh fish" that it be given the meaning normally understood in the fishing industry.

             [[Orig. Op. Page 4]]

            Inasmuch as you stated in your letter that persons dealing in shrimp, either cooked or uncooked, are taxed as dealers in "fresh shellfish," we are enclosing a copy of an attorney general's opinion issued on January 6, 1938, to the director of fisheries [[1937-38 OAG 250]], which holds that crabs or shrimp are considered fresh food and shellfish products, whether cooked or uncooked, and the original receivers are therefore taxable.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN M. REILLY
Assistant Attorney General