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Bob Ferguson

AGLO 1971 No. 85 -
Attorney General Slade Gorton

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                                                                   June 23, 1971
Honorable Brian M. Baker
Prosecuting Attorney
Lewis County
P.O. Box 918
Chehalis, Washington 98532                                                                   Cite as:  AGLO 1971 No. 85 (not official)
Dear Sir:
            You have requested this office's opinion concerning the application of RCW 46.16.090 to the following factual situation:
            A local farmer raises turkeys on a large scale.  When the turkeys are ready for market, he transports them in his own truck to a killing plant, where the turkeys are killed, defeathered and placed in the farmer's plastic bags.  The farmer then transports the prepared turkeys to his cold storage warehouse on his farm.  In doing so, he uses the same truck that he used to transport the turkeys from his farm to the killing plant.
            Your question is whether this farmer can operate his truck under the reduced licensing rate schedule provided for in RCW 46.16.090, which reads, in pertinent part, as follows:
            "Motor trucks or trailers may be specially licensed based on the maximum gross weight thereof for fifty percent of the various amounts set forth in the schedule provided in RCW 46.16.070, when such trucks or trailers are owned and operated by farmers, but only if the following condition or conditions exist:
            "(1) When such trucks or trailers are to be used for the transportation of such farmer's own farm, orchard or dairy products from point of production to market or warehouse, and of supplies to be used on his farm:  . . ."  (Emphasis supplied.)
             [[Orig. Op. Page 2]]
            In responding to this question, we have no doubt, at the outset, that the farmer's live turkeys ‑ when being hauled from his farm to the killing plant ‑ are "farm products" within the meaning of the subject statute.  Therefore, if his truck were used only for this trip and not for the return trip from the killing plant back to the farm with the prepared turkeys, we would think that he could properly license that truck under the statute.  However, because of the truck's additional use for this return trip, we believe that your question must be answered in the negative.
            The evident purpose of RCW 46.16.090, supra, is to allow farmers less expensively to transport their produce to market or to the processing plant by providing a partial exemption from a statute imposing a tax on highway users.  We must, therefore, start from the established principle that an exemption from a statute under which a tax in imposed must be strictly construed in favor of the application of the tax and against the exemption.  Unemployment Comp. Dept. v. Hunt, 17 Wn.2d 228, 135 P.2d 89 (1943); In re St. Paul & Tacoma Lumber Co., 7 Wn.2d 580, 110 P.2d 877 (1941).  It seems clear that in order to qualify for the exemption here in question the farmer must (1) be transporting a farm product, and (2) be doing so from point of production to market or warehouse.  In our view, in carrying produce turkeys back to his farm he meets neither of these qualifications.
            First, although we must acknowledge that there has been a considerable disparity of view in the courts which have discussed the nature of processed poultry, we think the better view is to be found in our own recent case of In re Fors Farms, Inc., 75 Wn.2d 383, 391, 450 P.2d 973 (1969).  In this case, the court distinguished between the products of a processing plant where chickens were "slaughtered, plucked, eviscerated, packaged, . . ." and those of the farms where the chickens had been raised.  Thereby, the court denied the applicability to the processing plant of an exemption under the employment security act covering employment "incidental to ordinary farming operation."1/   In holding that chicken processing was not incident to the appellants' "ordinary farming operations" the court said,  [[Orig. Op. Page 3]] ". . .  The mind boggles at classifying as an ordinary farming operation a corporate operation in which about 100 of the approximately 132 employees are engaged in the industrial work of processing chickens and manufacturing chicken feed, while only 7 employees perform services on a farm or farms, and the remaining 25 perform their services in a hatchery.  We find it impossible to escape the conclusion that we are not faced with "an ordinary farming operation" in this case, but rather with a commercial processing operation.  . . ."
            Indeed, the definition of "farming" contained in RCW 46.04.183 (a part of our motor vehicle licensing laws) supports this view.  This definition reads as follows:
            "'Farming' means the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (except forestry or forestry operations), the raising of livestick, bees, fur-bearing animals, or poultry, and any practices performed on a farm as an incident to or in conjunction with such farming operations."  (Emphasis supplied.)
            But secondly, even if one should reach the conclusion that the subject farmer's processed turkeys nevertheless retain their identity as "farm products," it still does not follow that the farmer is entitled to claim the exemption provided for in RCW 46.16.090, supra, when returning them from the processing plant to his storage warehouse.  This exemption, by its terms, clearly applies only while transporting farm products "from point of production" (clearly, his farm)2/ to storage warehouses.  It does not permit him to transport farm products from the processing plant to market, warehouse, or to anywhere else.

             [[Orig. Op. Page 4]]
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, RCW 50.04.150.
2/See, State ex rel. Wisc. Truck Owners Asso. v. Public Service Comm. of Wisc., 207 Wisc. 664, 242 N.W. 668 (1932), and The District of Columbia v. Oyster, 4 Mackey 285, 15 D.C. 285, 54 Am.Rep. 275 (1885).