HIGHWAYS ‑- MOTOR VEHICLES ‑- EXCESS WEIGHTS ‑- PENALTIES ‑- COMPUTATION OF

HIGHWAYS ‑- MOTOR VEHICLES ‑- EXCESS WEIGHTS ‑- PENALTIES ‑- COMPUTATION OF

Section 32, chapter 269, Laws of 1951, is susceptible of two constructions, and thus the construction most favorable to the violator must be adopted, which is that excess weight payments apply only to the weights in excess of those allowed by sections 30 and 31 for vehicles and combinations of vehicles.

                                                                  - - - - - - - - - - - - -

                                                               September 5, 1951

Honorable James A. Pryde
Chief, Washington State Patrol
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 121

Dear Sir:

            This is in answer to your inquiry of August 15, 1951, in which you requested our opinion on the application of the excess weight payments prescribed by section 32, chapter 269, Laws of 1951.

            In this connection you asked:

            "Are excess weight payments applicable in all instances when weights exceed those set forth in Sections 30 and 31, i.e.:  on (1) axle weights, (2) axles spaced less than seven feet apart, (3) groups of axles, and (4) combinations of vehicles or does excess weight apply only to vehicle or combination of vehicles weight violations in excess of the maximum licensed gross weight plus the weights allowed by Sections 30 and 31."

            Our conclusion may be stated as follows:

            Section 32, chapter 269, Laws of 1951, is susceptible of two constructions, and thus the construction most favorable to the violator must be adopted, which is that excess weight payments apply only to the weights in excess of those allowed by sections 30 and 31 for vehicles and combinations of vehicles.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            To be able to understand the problem involved, it would be well to have before us those sections of chapter 269 involved.

            Sections 30 and 31 set forth weight tolerances allowable in excess of the legal limits for (1) single axle (2) axle space less than 7 feet apart (3) groups of axles, and (4) combinations of vehicles.  Section 32 provides in part as follows:

            "In addition to any penalty incurred under the provisions of this act, the owner or operator of any motor vehicle or combination of motor vehicles, as payment for excess weights, over and above those set forth in sections 30 and 31, shall pay two cents per pound for each pound of excess weight up to five thousand pounds; if such excess weight is five thousand pounds and not in excess of ten thousand pounds, the rate per pound shall be three cents per pound for each pound of excess weight; and if the excess weight is ten thousand pounds or over the rate shall be four cents per pound for each pound of such excess weight.

            "* * *

            "For the purposes of this section 'excess weight' shall mean that poundage in excess of the maximum licensed gross weight plus the weights allowed by sections 30 and 31 of the vehicle or of the vehicles in combination.

            "* * *"

            It is to be noted that the first paragraph of section 32, above, indicates that the payment of two, three, or four cents per pound for excess weight applies to each of the four situations referred to in sections 30 and 31.  At this point, then, an owner or operator exceeding the limits prescribed in sections 30 and 31 would, depending upon the extent of his excess weight, be compelled to make excess weight payments on the basis of the excess weight on (1) a single axle, (2) axle spaced less than seven feet apart, (3) groups of axles, and (4) combinations of vehicles.

             [[Orig. Op. Page 3]]

            However, a reading of the third paragraph of section 32, quoted above, which defines "excess weight" for purposes of section 32, indicates that an owner or operator exceeding the limits prescribed in sections 30 or 31 would only be compelled to make excess weight payments on the basis of the excess weight "allowed by sections 30 and 31 of the vehicle or of the vehicles in combination."  It appears that this paragraph of section 32 would indicate that a different basis of computing excess weight payments was intended, which if true, would result in a substantially smaller payment than assessed if the meaning of the first paragraph of section 32 were to control.

            The result, then is that section 32 is susceptible of two constructions, (1) that the excess weight payments shall apply to all of those situations set forth in sections 30 and 31, or (2) that the excess weight payments apply only to the weights in excess of those allowed by sections 30 and 31 for vehicles or combinations of vehicles.

            In resolving this unfortunate dilemma, we must take into consideration that the excess weight payments of section 32 are, in effect, penal in nature.  Since these payments are in the nature of a penalty, we are faced with the principle of statutory construction providing that penal statutes are to be strictly construed, and consequently, any ambiguity or inconsistency in such a statute is to be resolved in favor of the defendant.

            It is also the rule that where a statute prescribing a penalty is susceptible of two constructions, that construction which is most favorable to the defendant must be given effect.  State v. Anderson, 61 Wash. 674, 112 Pac. 240.  Since it is our view that section 32 is susceptible of two constructions, we feel obliged to give effect to the construction most favorable to the defendant, which would be that excess weight payments are to be assessed only for the weights in excess of those allowed by sections 30 and 31 for vehicles or vehicles in combinations.  Accordingly, you are advised that the excess weight payments prescribed by section 32 apply only to the weights in excess of those allowed by sections 30 and 31 for vehicles and combinations of vehicles.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General