DEPARTMENT OF AGRICULTURE ‑- POWERS AND DUTIES OF THE DIRECTOR ‑- APPLE INDUSTRY ‑- ESTABLISHMENT OF GRADES FOR APPLES -- CAN THE DIRECTOR OF AGRICULTURE ESTABLISH A HAIL GRADE FOR APPLES?

DEPARTMENT OF AGRICULTURE ‑- POWERS AND DUTIES OF THE DIRECTOR ‑- APPLE INDUSTRY ‑- ESTABLISHMENT OF GRADES FOR APPLES --CAN THE DIRECTOR OF AGRICULTURE ESTABLISH A HAIL GRADE FOR APPLES?

The director of agriculture has the authority to establish a hail grade for apples.

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                                                                   June 29, 1953

Honorable Sverre N. Omdahl
Director
Department of Agriculture
Old Capitol Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 76

Dear Sir:

            We acknowledge receipt of your request for an opinion on whether or not the Director of Agriculture may establish a hail grade for apples.

            In our opinion, the Director of Agriculture has the authority to establish a hail grade for apples.

                                                                     ANALYSIS

            Your correspondence indicates that hail grade is a commercial grade of apples, which brings prices higher than "C" grade.  The fruit meets the requirements of combination extra fancy and fancy in all particulars, with the single modification of hail marks.  The fruit does not include culls and is fit for human consumption.

            The legislature, by section 2, chapter 150, Laws of 1943, (RCW 15.16.010) invested the director of agriculture with the power, and it is his duty, to formulate, promulgate and enforce regulations fixing commercial grades of fruit.

             [[Orig. Op. Page 2]]

            Section 1, chapter 222, Laws of 1939 (RCW 15.16.050) provides that:

            "It shall be unlawful for any person, firm, corporation, trust, association, co-operative or other business unit or device to pack, ship or sell apples unless such apples are sold, packed and graded in compliance with the general rules and regulations made, adopted and promulgated from time to time by the Director of Agriculture pursuant to section 4 of chapter 27 of the Laws of 1931 * * * Within sixty (60) days after the taking effect of this act general rules and regulations shall be adopted and promulgated defining and establishing the following grades:

            (a) Extra fancy

            (b) Fancy

            (c) C grade

            (d) Culls

            (e) Infested culls."

            Section 9 of this act specifies that the act shall be liberally construed.  The fundamental rule of construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.  State v. Clausen, 160 Wash. 618.  The language of a statute must be given a construction that will make it purposeful and effective.  Denning v. Quist, 172 Wash. 83.

            Section 4, chapter 27, Laws of 1931, as amended by section 1, chapter 263, Laws of 1953, provides:

            "It is unlawful for any person who grows, packs, or otherwise deals in fruits, * * * to:

            "(1) Offer for sale, sell, or ship any such products * * * without first plainly marking on the outside of each container the standards, rules and regulations adopted by the director hereunder, and, either the true grades of the contents as fixed by said standards, rules and regulations, or a special or private grade or brand registered and approved by the director:  Provided, That private grades or brands for apples may only be registered and approved when they meet the specifications required of fancy grade or better; or

             [[Orig. Op. Page 3]]

            "(2) Place upon any container * * * the name of a grade which imitates or approaches the name of any grade promulgated by the director; * * * "

            In our opinion, the act of 1943, which directs the establishment of the specified grades and refers to the 1931 enactment (since amended in 1953), does not prohibit the establishment of additional grades where such additional grades are made for the best interests of the industry.  The authority vested in the director of agriculture by the legislature in these enactments authorizing the promulgation of rules and regulations fixing commercial grades of fruit expresses the legislative cognizance of the fact that changing circumstances and conditions may affect this industry.

            In addition, section 2, chapter 204, Laws of 1937, provides that it shall be unlawful for any person to sell at retail any apples not coming within the grade of extra fancy, fancy "C" grade, or combination grades established under the laws of the State of Washington and the rules and regulations of the department of agriculture, unless a permit so to do has been granted by horticultural inspectors.  This section contains the further proviso that extra fancy, fancy, "C" grade, and combination grades shall not include any culls as defined by the rules and regulations of the department of agriculture.  Upon application, all permits shall be granted by the director, but such permits shall not be granted for the purpose of retailing infected apples not fit for human consumption.  We find no reference in subsequent statutes either overruling or modifying this authority of the director to establish combination grades in addition to those specified by the legislature in 1939.

            From a review of the aforementioned statutes, and the expression of the legislature that the act of 1939 be liberally construed, it is our opinion that the grades established by the legislature are not exclusive and that, in the best interests of the apple industry, the director of agriculture may cause to be established and defined additional commercial grades for apples.  We, therefore, advise that the director of agriculture may establish a hail grade.

Very truly yours,

DON EASTVOLD
Attorney General

PHYLLIS DOLVIN
Assistant Attorney General