Booth Fisheries Corp. v. Case , 182 Wash. 392 ( 1935 )

BEALS, TOLMAN, and HOLCOMB, JJ., dissent. This action involves the construction of chapter 162, Laws of 1933, p. 591, entitled:

"An Act relating to fisheries and food fish, providing for an excise tax and poundage fee thereon, creating a lien on canneries, packing plants, scows, boats and their fishing equipment for such taxes and fees, amending . . . section 5704a of Remington's Compiled Statutes of Washington, 1927 Supplement .. ."

The act consists of three sections. The first section (Rem. 1934 Sup., § 5704a [P.C. § 2460-2]) contains a schedule of license fees to be paid. The first portion of the section relates to license fees to be paid by fishermen using various kinds of gear. The second portion is a schedule of poundage fees to be paid by a

". . . canner, receiver, buyer, or wholesaler of salmon, shad or sturgeon . . . caught in the Columbia river district or the waters of the Columbia river over which the State of Washington has jurisdiction . . ."

The third portion of the section contains a schedule of fees to be paid by persons engaged in packing and canning salmon in the districts of Puget Sound, Willapa Harbor and Grays Harbor. Following that, the section continues:

"There shall also be paid to the treasurer of the State of Washington by every person, firm or corporation, operating within the aforesaid districts as a receiver, buyer, or wholesaler of salmon, the sum of six cents (6¢) on each Puget Sound spring salmon; four-fifths cent (4/5¢) on each dog or chum salmon; three-fourths cent (3/4¢) on each pink or humpback salmon; one and one-half cents (1 1/2¢) on each silver salmon; two cents (2¢) on each sockeye salmon; and four and one-third cents (4 1/3¢) on each steelhead salmon received or purchased for purposes other than canning by such receiver, buyer or wholesaler.

"It is the intention of this act that the poundage fee herein provided for shall be collected for each and every pound of fish received or purchased by any person, firm or corporation within the state of Washington, whether for the purpose of canning or to be sold on the fresh-fish market in a frozen state or as otherwise prepared."

The second section of the act (Rem. 1934 Sup., § 5704a-1 [P.C. § 2460-2a]) declares the purpose of the act to be to require every person taking salmon or food fish from the territorial waters of the state, or from the waters of the Pacific ocean offthe western territorial limits of the state, to pay the catchtax imposed by the act.

The third section of the act declares an emergency, and provides that the act shall take effect immediately.

The plaintiffs are engaged in buying salmon and other food fish from fishermen and thereafter selling them at wholesale. They allege that they buy at Seattle and at three different points on the Pacific ocean within the territorial limits of the state. They allege that they buy fish caught in the Pacific ocean, both within and beyond the territorial limits of the state; that the fish caught without the territorial limits of the state may be readily segregated from those caught within; that the defendant, who is state treasurer, will, unless enjoined by the court, collect from plaintiffs the tax prescribed in the schedule contained in the above quoted portion of the act upon fish caught in the Pacific ocean beyond the territorial limits of the state. Demurrer to the complaint was sustained. Plaintiffs electing to stand on the complaint, judgment of dismissal was entered, from which plaintiffs appeal.

[1] The problem presented is to be solved by the character of the tax sought to be levied. If it is a "catch" or "severance" tax, it is not collectible on fish caught outside of the territorial limits of the state, if, in fact, they can be, as alleged in the complaint, readily segregated from those caught within the territorial limits. For the state has no power to levy an impost on imports, or to levy a tax on interstate or foreign commerce beyond what is necessary to defray costs of inspection. Constitution of the United States, article I, §§ 8, 10; Foote Co. v. Stanley, 232 U.S. 494, 34 S. Ct. 377; Foote Co. v.Stanley, 117 Md. 335, 82 A. 380; Foote Co. v. Clagett,116 Md. 228, 81 A. 511.

That fish caught in the Pacific ocean beyond the territorial limits of the state are imports, when brought into the state, is not open to question. Gulf Fisheries Co. v. Darrouzet, 17 Fed. 2d 374. See, also, Gulf Fisheries Co. v. MacInerney,276 U.S. 124, 48 S. Ct. 227. So long as the imported article does not become commingled with the mass of property in the state, it is exempt from taxation by the state. Brown v. Maryland,25 U.S. 266. It loses this exemption only when sold, or when it is taken from the original package and exposed for sale. Sonneborn Bros.v. Cureton, 262 U.S. 506, 43 S. Ct. 643.

Respondent contends, however, that the tax contemplated by the portion of § 1 which we have quoted is an occupation tax, and not a levy upon imports. Taken alone, the language quoted might be susceptible of such construction. But to so construe it would necessitate reading § 2 out of the act. That section, it is to be remembered, defines the imposition as a "catch tax," and purports to levy it on fish caught in the Pacific ocean beyond the territorial limits of the state. This, under the authorities cited, the state has not the power to do. Respondent, recognizing this, invites us to ignore § 2 entirely. If this be done, he urges that the quoted portion of § 1 could and should be construed as an occupation tax upon such dealers in salmon as the plaintiffs.

[2] To follow this suggestion, however, would do violence to the primary rule of statutory construction, namely, to so construe the act as to give effect to each and every part of it.State ex rel. Baisden v. Preston, 151 Wash. 175, 275 P. 81. Only when portions of an act are so inconsistent with each other that to give effect to one renders the other nugatory is the court justified in saying which shall stand and which shall fall.Mills v. Thurston County, 16 Wash. 378, 47 P. 759. Reading the quoted portions of § 1 and § 2 together, it is clear to us that the levy contemplated is a "catch tax." It is laid on salmon landed, not upon salmon sold. See Gulf Fisheries Co. v.MacInerney, supra.

Giving the sections their full force, under the cases heretofore cited, the tax cannot be collected upon salmon caught outside the territorial limits of the state, which have not become commingled with the mass of property within the state, except upon the theory that it is a reasonable imposition as an inspection fee. Gulf Fisheries Co. v. Darrouzet, supra. We do not understand respondent to contend that the tax is sustainable on that theory. If he does, an issue of fact is presented. SeeFoote Co. v. Stanley, 232 U.S. 494, 34 S. Ct. 377.

Since it is alleged in the complaint that respondent threatens to levy the tax on salmon caught beyond the territorial limits of the state before they become a part of the mass of property within the state, and that such salmon are readily segregable from those caught within the state, an issue of fact is presented, which calls for answer and trial upon the merits. See Gulf Fisheries Co. v. MacInerney, supra;Gulf Fisheries Co. v. Darrouzet, supra.

Judgment reversed.

MILLARD, C.J., MAIN, MITCHELL, STEINERT, and GERAGHTY, JJ., concur.