RAILROADS ‑- TRACK MOTOR CARS

RAILROADS ‑- TRACK MOTOR CARS

A railroad company is not required by RCW 81.44.101 to equip its track motor cars with sides and backs.

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                                                                    April 9, 1958

Honorable Jay Roy Jones
Prosecuting Attorney
Pend Oreille County
Newport, Washington                                                                                  Cite as:  AGO 57-58 No. 178

Dear Sir:

            You have requested our opinion as to whether or not a railroad company is required to equip its track motor cars with side curtains and/or backs of wood or canvas by RCW 81.44.101 (2).

            It is our conclusion that such sides and backs are not required.

                                                                     ANALYSIS

            RCW 81.44.101 (2) (§ 1, chapter 42, Laws of 1951), provides as follows:

            "(2) A canopy or top of such construction as to adequately protect the occupants thereof from the rays of the sun, rain, snow or other inclement weather."

            And, RCW 81.44.105 makes the violation of that provision a misdemeanor.

            Statutes concerning track motor cars have been passed in some twenty-one states.  In many of these states, the statutes require only safely devices and do not mention a canopy or top.  In a few of these states, the statutes require only a "canopy or top," without further qualifying words.

             [[Orig. Op. Page 2]]

            In other states, the statutes require:

            ". . . a substantial top for the protection of said employees from rain, snow, sleet and hail."  (Okla., Laws of 1957, p. 480, Stat. Anot. Tit. 40, § 188).

            Kentucky goes further and requires a "reasonably substantial top" (Acts 1952, Ch. 149, Rev. Stats. § 277.245).  The remaining states have statutes similar to ours.  The State of Idaho, for example, has an almost identical statute.

            It is noteworthy that not one of these 21 statutes, including our own, specifically requires sides and backs on track motor cars.  Considerable research fails to reveal any court interpretation, in these other states or in our own, of the meaning of canopy or top as applicable to these cars.

            Under applicable rules of statutory construction, the legislative meaning of these nontechnical words must be ascertained by considering their generally accepted definition.  Featherstone v. Dessert, 173 Wash. 264.  The word "top" is defined by Webster's New International Dictionary, (2nd Ed.)inter alia, as follows:

            "A fitted part, attached unit, or the like, which serves as an upper piece, an end piece, a lid, a covering, etc.; . . ."

            From this definition, we conclude that even with the addition of the qualifying words, "of such construction as to adequately protect the occupants thereof" from the elements, the meaning of top cannot be stretched to include sides and backs.

            Since our statute requires a canopy or top, we must consider the meaning of the word "canopy."  The word "canopy" is defined by Webster's New International Dictionary (2nd Ed.)inter alia, as follows:

            "1. A covering fixed over a bed, throne, shrine, or the like, . . .

            "2. Any overhanging shelter or shade; a covering; . . ."

            Under any rule of statutory construction, whether strict or liberal, the legislative intention, when clearly apparent, must prevail.  Public Hosp. Dist. v. Taxpayers, 44 Wn. (2d) 623.  Since the statutory language does not specifically mention sides and backs, we conclude that they are not required by the word "canopy."

             [[Orig. Op. Page 3]]

            Under applicable rules of statutory construction the use of the word "or" in a statute is normally disjunctive.  2 Sutherland, Statutory Construction, (3rd ed.), § 4923, p. 450.  Since this is a penal statute, the rules provide for strict construction:

            "In penal statutes, the word 'or' is seldom used other than as a disjunctive, and such word cannot be interpreted as meaning 'and' when the effect would be to aggravate the offense or increase the punishment. . . ." (82 C.J.S., Statutes, § 335, p. 675.)

            InState v. Tiffany, 44 Wash. 602, the court stated that the plain language of a penal statute such as the word "or" cannot be disregarded, unless the act itself furnishes cogent proof of a legislative error.  No such error is here involved.

            In summary, we conclude that a railroad company is not required by RCW 81.44.101 (2) to equip its track motor cars with sides and backs, but only with a canopy or top of such construction as to adequately protect the occupants from the elements.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General