LEGISLATURE ‑- CONSTITUTIONALITY OF PROPOSED LAW REQUIRING OUT-OF-STATE APPLES AND FRUITS TO MEET WASHINGTON STATE STANDARDS ‑- POLICE POWER

LEGISLATURE ‑- CONSTITUTIONALITY OF PROPOSED LAW REQUIRING OUT-OF-STATE APPLES AND FRUITS TO MEET WASHINGTON STATE STANDARDS ‑- POLICE POWER.

(1) The legislature of the state of Washington may enact a law in the exercise of its police power requiring all apples and other fruit being shipped into the state to meet state grades notwithstanding the grades, if any, of the state of origin, providing that the fruit was not being shipped into Washington according to federal grades.  Any legislation would be inoperative if any of the state grades adopted were in direct conflict with any federal grades being used pursuant to any act of Congress which would allow the interstate shipment of fruit according to federal grades.(2) Same:  Such a law could be enforced by various means including "stop-sale orders," "embargoes," "seizures" and criminal sanctions.

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                                                                 January 15, 1963

Honorable Cecil C. Clark
Washington State Representative
Legislative Building
Olympia, Washington

                                                                                                                  Cite as:  AGO 63-64 No. 4

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office concerning two questions which we paraphrase as follows:

            (1) May the legislature of the state of Washington constitutionally enact a law requiring all apples and other fruit shipped into and sold in Washington to meet the grades established for such fruit grown and sold within the state?

            (2) If such a law is within the authority of the legislature how could the state enforce it?

            The answer to question (1) is that the state may in the exercise of its police power enact such a law notwithstanding the grades, if any, of the state of origin and providing that no federal grades for such fruit have been adopted, but such a law would be inoperative and unconstitutional if any of the grades adopted were in direct conflict with any federal grades being used and adopted pursuant to the Agricultural Adjustment Act of 1938 (7 U.S.C.A. § 1281et seq.), the Agricultural Marketing Agreement Act of 1937 (7 U.S.C.A. § 601et seq.) and the Agricultural Marketing Act of 1946 (7 U.S.C.A. § 1621et seq.).

            The answer to question (2) is that such a law could be enforced by  [[Orig. Op. Page 2]] various means including "stop-sale orders," "embargoes," "seizures" and criminal sanctions.

                                                                     ANALYSIS

            Question (1):

            It is a well-settled and fundamental rule of constitutional law that a state legislature may enact any law not expressly or inferentially prohibited by the constitution of the state or nation.  In re Bartz, 47 Wn. (2d) 161, 287 P. (2d) 119 (1955).  The basic distinction between the state and federal constitutions is that the federal constitution is a grant of power whereas the state constitution is a limitation upon the legislative powers of a state.  Union High Etc. v. The Taxpayers, Etc., 26 Wn. (2d) 1, 172 P. (2d) 591 (1946).  Thus, all powers not expressly granted to the United States by the federal constitution or implied from those granted are reserved to the states. United States v. Butler, 297 U.S. 1, 80 L.Ed. 477, 56 S.Ct. 312 (1935).

            In looking to the state constitution we find no limitation upon the legislative power which would expressly or inferentially prohibit such a statute.  In fact laws regulating the grading, packing and marketing of farm products have universally been held to be within the police power of a state if reasonable and nondiscriminatory.  In the landmark case ofClark v. Dwyer, 56 Wn. (2d) 425, 433, 353 P. (2d) 941 (1960) the court, in speaking of the state statute regulating apple standards, stated:

            ". . . The wisdom of this change is a matter within the province of the legislature, not of this court, and its purpose, which we assume to be for the protection of the reputation of Washington apples and the betterment of the industry, and as a result the general welfare, is one which could properly be served in the exercise of the police power.  Regulations of this type have been held valid in numerous cases, among them Sligh v. Kirkwood, supra [237 U.S. 52],Detweiler v. Welch, 46 F. (2d) 75, 73 A.L.R. 1440, Nebbia v. New York, 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505, 89 A.L.R. 1469,Marshall v. Department of Agriculture, 44 Idaho 440, 258 Pac. 171,In re Fujii, 189 Cal. 55, 207 Pac. 537, and Avon Western Corp. v. Woolley, 42 N.Y.S. (2d) 690, 266 App.Div. 529.  In cases holding acts  [[Orig. Op. Page 3]] of this type invalid, there has generally been a finding that the particular law was unreasonable or the court has adopted a narrow concept of the police power."

            In looking to the federal constitution to determine if the state may enact such a law the question is not so easily determined.  By Article I, § 8, clause 3, of the federal constitution Congress has been granted the exclusive authority to regulate interstate commerce with foreign nations and among the several states.  Clause 2 of Article VI further provides that:

            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

            This does not mean, however, that since Congress has been granted the authority to regulate interstate commerce that a state cannot enact a law which affects interstate shipments.  It is well settled as is stated in Parker v. Brown, 317 U.S. 341, 360, 87 L.Ed. 315, 63 S.Ct. 307 (1943), that:

            ". . . This Court has repeatedly held that the grant of power to Congress by the Commerce Clause did not wholly withdraw from the states the authority to regulate the commerce with respect to matters of local concern, on which Congress has not spoken. . . ."  (Citations omitted.)

            The applicable test in determining whether state legislation such as this proposed is valid, since it will affect the interstate shipment of fruit, is aptly set forth inCities Serv. G. Co. v. Peerless O. & G. Co., 340 U.S. 179, 186, 95 L.Ed. 190, 71 S.Ct. 215 (1950):

            "The Commerce Clause gives to the Congress a power over interstate commerce which is both paramount and broad in scope.  But due regard for state legislative functions has long required that this power be treated as not exclusive.  Cooley v. Port Wardens (US) 12 How. 299, 13 L.Ed. 996 (1851).  It is now  [[Orig. Op. Page 4]] well settled that a state may regulate matters of local concern over which federal authority has not been exercised, even though the regulation has some impact on interstate commerce.  Parker v. Brown, 317 U.S. 341, 87 L.Ed. 315, 63 S.Ct. 307 (1943); Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 83 L.Ed. 752, 59 S.Ct. 528 (1939); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 82 L.Ed. 734, 58 S.Ct. 510 (1938).  The only requirements consistently recognized have been that the regulation not discriminate against or place an embargo on interstate commerce, that it safeguard an obvious state interest, and that the local interest at stake outweigh whatever national interest there might be in the prevention of state restriction. . . ."

            Disregarding for the moment any conflict with federal law regulating grades, we believe that the state may enact such a law requiring all fruit shipped into Washington to meet Washington standards regardless of the standards, if any, for the fruit promulgated by the state of origin.  In applying the three requirements set forth in the Peerless case, supra, we find that such an act would not discriminate against or place an embargo on interstate commerce and that it would safeguard an obvious state interest by protecting Washington citizens against the importation and sale of immature, ungraded or inferior fruit and prevent confusion and deception and that the local interest at stake outweighs whatever national interest there might be in preventing the restriction.

            Since it is well settled that a state may enact such a law in the absence of Congressional action in conflict therewith, we must next determine if any federal law would prohibit such action by the state.  It must be remembered that we are here concerned only with federal law relating to grades of apples and other fruit.

            Pursuant to the commerce clause, Congress enacted the Agricultural Adjustment Act of 1938 (7 U.S.C.A. § 1281 et seq.) and the Agricultural Marketing Agreement Act of 1937 (7 U.S.C.A. § 601et seq.) which are primarily enabling acts for the promulgation of marketing orders dealing with various types of agricultural products.  These acts may be treated substantially the same and will be referred to hereafter as the Marketing Agreement Act of 1937, since they are coordinate laws for the same purpose as shown by the court's statement in Parker v. Brown, supra, at page 357:

             [[Orig. Op. Page 5]]

            ". . . The Agricultural Adjustment Act of 1938 and the Agricultural Marketing Agreement Act of 1937 were both derived from the Agricultural Adjustment Act of [May 12] 1933, 48 Stat at L 31, chap. 25, 7 U.S.C.A. § 601, and are coordinate parts of a single plan for raising farm prices to parity levels. . . ."

            The first question to be determined is whether Congress preempted the field by the adoption of the Marketing Acts and thus excluded any state legislation on the same subject matter or whether the state may enact laws on the same subject matter if they do not conflict with a federal law or regulation thereunder.  The rule is stated inOregon-Washington R. & Nav. Co. v. Washington, 270 U.S. 87, 101, 70 L.Ed. 482, 46 S.Ct. 279 (1926), as follows:

            "In the relation of the states to the regulation of interstate commerce by Congress there are two fields.  There is one in which the state cannot interfere at all, even in the silence of Congress.  In the other, and this is the one in which the legitimate exercise of the state's police power brings it into contact with interstate commerce so as to affect that commerce, the state may exercise its police power until Congress has by affirmative legislation occupied the field by regulating interstate commerce and so necessarily has excluded state action."

            We do not find any preemption by Congress in adoption of the Marketing Acts and thus states may also regulate grades if not in conflict with the federal law or regulations.  See,Parker v. Brown, 317 U.S. 341, supra, holding the California Agricultural Prorate Act for raisins valid since no stabilization plan for raisins had been formulated under the Agricultural Marketing Agreement Act of 1937.  InHood v. DuMond, 336 U.S. 525, 542, 93 L.Ed. 865, 69 S.Ct. 657 (1948), the court said:

            ". . . We assume, though it is not necessary to decide, that the Federal [Agricultural Marketing Agreement Act of 1937] Act does not preclude a state from placing restrictions and obstructions in the way of interstate commerce for the ends and purposes always held permissible under the Commerce Clause. . . ."

            The case ofFlorida Lime and Avocado Growers, Inc. v. Paul, 197  [[Orig. Op. Page 6]] F. Supp. 780 (Calif. 1961) was decided by a three judge court and involved the question of whether California could prohibit the importation and sale of avocados unless they met an 8% oil requirement of California.  The suit was brought by Florida avocado growers to enjoin enforcement of the California law which required avocados to contain not less than 8% oil by weight excluding skin and seed.  Florida avocados of certain varieties will not meet these standards.  Under a Florida avocado order issued under the Agricultural Marketing Agreement Act of 1937, Florida avocados may not be marketed unless picked and shipped in accord with certain maturity dates.  This order the court held did not prevent application of the California 8% oil content requirement to Florida avocados, because there was no clear conflict between the two and that which did conflict was considered to be deminimis.  This case is presently on appeal before the supreme court and we have withheld issuing this opinion in the hope that the court would clarify the issues involved but as yet no decision has been forthcoming.

            The last federal act which we deem pertinent to the question here is the Agricultural Marketing Act of 1946 (7 U.S.C.A. § 1621, et seq.) This act provides optional grades for the interstate shipment of fruit and other agricultural products as promulgated by the secretary of agriculture.  The act further provides for cooperation with the states in carrying out its purpose and nowhere in its language or history of the act has Congress expressed an intention to preempt the field of interstate grades to the exclusion of the states.  For legislative history and purpose of the act see U.S. Code Congressional and Administrative News, 1946 at page 1584.  The fact that the grades are not mandatory but may be used at the option of the shipper also supports the conclusion that Congress did not intend to preempt the field.  See, also,Campbell v. Hussey, 368 U.S. 297, 7 L.Ed. (2d) 299, 82 S.Ct. 327 (1961), holding the Federal Tobacco Act preempted the field regarding grades.

            Pursuant to this authority the secretary of agriculture adopted various grades for fruit and other agricultural commodities.  See 7 C.F.R. 51.1 to 52.5210 which set forth the federal grades.  For example, sections 51.300 to 51.307 set forth the following grades for apples:  U.S. extra fancy; U.S. fancy; U.S. No. 1; U.S. No. 1 cookers; U.S. No. 1 early; U.S. Utility; Combination grades; and U.S. Hail grade.

            Although these federal grades are optional, the state could not compel the shipper to forego his option under the federal act and require him to ship into Washington according to state grades since the result would be to destroy his rights arising under the federal act.  InMcDermott v. Wisconsin, 228 U.S. 115, 133, 57 L.Ed. 754, 33 S.Ct. 431 (1913), the state law of Wisconsin required an importer to substitute labels which were authorized by federal law and the court in  [[Orig. Op. Page 7]] holding the state law invalid said:

            ". . . Conceding to the state the authority to make regulations consistent with the Federal law for the further protection of its citizens against impure and misbranded food and drugs, we think to permit such regulation as is embodied in this statute is to permit a state to discredit and burden legitimate Federal regulations of interstate commerce, to destroy rights arising out of the Federal statute which have accrued both to the government and the shipper, and to impair the effect of a Federal law which has been enacted under the Constitutional power of Congress over the subject."  (Emphasis supplied.)

            The attorney general of Wisconsin recently issued an opinion to the effect that a Wisconsin statute providing standards of identity for canned vegetables and fruits are invalid in so far as they conflict with federal standards.  The opinion held that the Wisconsin statute could not validly be enforced to bar the importation and sale of canned vegetables conforming to the federal standards but containing optional ingredients not recognized in the state standards.  Opinion of Wisconsin attorney general, December 5, 1960, C.C.H. Food and Drug Reporter § 85,127.

            Thus, if the proposed legislation in question attempted to bar the importation and sale of fruit graded according to federal interstate grades such a state statute would be in direct conflict with the federal act and would be inoperative and unconstitutional in so far as it conflicted with the federal standards.

            Therefore, it is our considered opinion that the legislature of the state of Washington may in the exercise of its police power constitutionally enact such a law requiring fruit being imported into the state to meet state grades notwithstanding the grades, if any, of the state of origin, and providing that the fruit was not being shipped into Washington according to federal grades.  But such a law would be inoperative and unconstitutional if any of the state grades adopted were in direct conflict with any federal grades being used pursuant to any act of Congress which would allow the interstate shipment of fruit according to federal grades.

            Question (2):

            The proposed legislation in question, in so far as it did not conflict with federal law, could be enforced by the use of a stop-sale,  [[Orig. Op. Page 8]] embargo, seizure or criminal sanction for a violation of the act by a failure to meet the standards required by the state statute.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General