No.

Dr. Steven W. Horn Commissioner Department of Agriculture State of Colorado 700 Kipling Street, No. 4000 Lakewood, CO 80215-5894

Dear Dr. Horn:

This opinion letter responds to the March 11, 1991 inquiry from Brand Commissioner Gary Shoun about the legality of a split brand inspection fee structure for slaughter livestock, nonslaughter livestock, and nonslaughter, horse livestock.¹

QUESTIONS PRESENTED AND CONCLUSIONS

Your request for an attorney general's opinion presents the following questions:

a. Is a 40 cents per head brand inspection fee for nonslaughter, horse livestock and a lower per-head inspection fee for other nonslaughter livestock legal under § 35-41-104(1), C.R.S. (1984 1991 Supp.)?

No.

b. Is a brand inspection fee structure of 30 cents for slaughter livestock and 38 cents for nonslaughter livestock legal under § 35-41-104(1), C.R.S. (1984 1991 Supp.)?

No.

ANALYSIS

Section 35-41-104(1), C.R.S. (1991 Supp.) authorizes the Board of Stock Inspection Commissioners (hereafter, "the Board") to levy and collect an inspection "tax" or "fee" on each head of livestock inspected by brand inspectors. As originally enacted in 1981, the statute simply authorized the Board to levy and collect a per head inspection tax on all livestock inspected.See 1981 Colo. Sess. Laws 1707. Before 1989, the Board basically charged only one fee for all livestock.¹ In 1989, the statute was significantly amended to read:

The board is hereby authorized to levy and collect through authorized brand inspectors a per head inspection tax of not more than forty cents on all livestock inspected; except that the charges for livestock shipped to slaughter directly from a feedlot within twenty-four hours after inspection in such feedlot are as follows: For the first five hundred head per owner per certificate, two cents below the set inspection tax, and for over five hundred head per owner per certificate, five cents below the set inspection fee. Such sliding scale charges shall take effect at such time as the set inspection fee exceeds thirty-four cents. . . .

Section 35-41-104(1), C.R.S. (1984 1991 Supp.) (emphasis supplied to pertinent additions to statute).

1. After the amendment of § 35-41-104(1), the Board established a per-head inspection fee of 40 cents for all horses, but claimed that it could set a per-head inspection tax for nonslaughter horses of 40 cents and a different per-head inspection tax for other nonslaughter livestock. The Board's position is that it may charge a different inspection tax for different kinds or classes of livestock. As I interpret §35-41-104(1), C.R.S. (1984 1991 Supp.), the Board may only charge one inspection tax unless otherwise specified by statute.

Section 35-41-100.3(5), C.R.S. (1984 1991 Supp.) states in pertinent part:

35-41-100.3. Definitions. As used in this article, unless the context otherwise requires:

(5) "Livestock" means all cattle, calves, horses, mules, and burros. . . .

(emphasis added).

Because the legislature treated slaughter livestock differently from other kinds and classes of livestock by statute, it is my opinion that the legislative intent of § 35-41-104(1), C.R.S. (1984 1991 Supp.) only establishes two per-head inspection taxes, one for nonslaughter livestock and one for slaughter livestock. Because the legislature has not acted to treat horses differently from other kinds and classes of slaughter and nonslaughter livestock, a 40 cents per head inspection tax on all nonslaughter horses inspected and a lower per-head inspection tax for other nonslaughter livestock is impermissible.

2. Recently the Board proposed a fee structure of 38 cents per head for all nonslaughter livestock other than horses and 30 cents per head for slaughter livestock. These fees were adopted pursuant to what the Board perceived was its authority under § 35-41-104(1), C.R.S. (1984 1991 Supp.) to establish an "inspection tax" on all livestock.

In the Board's view, the new, mandatory 2-5 cent reduction of fee for slaughter livestock comes into play only if and when it decides to impose a separate inspection fee on slaughter livestock in excess of 34 cents a head. In my opinion, the Board has misinterpreted the intent underlying the statute. The underlying intent of the statute is to apply the "sliding scale charges" to a single "set inspection fee."

Section 35-41-104(1), C.R.S. (1984 1991 Supp.) is silent about the meaning of "set inspection fee." In my view, the plain language of the statute is that "set inspection fee" is one inspection fee established by the Board. This single fee applies to all inspected livestock except sheep (see §§35-50-105 and 107, C.R.S. (1984)) and slaughter livestock (by operation of § 35-41-104(1), C.R.S. (1984 1991 Supp.)). Because § 35-41-104(1), C.R.S. (1984 1991 Supp.) clearly creates a mandatory sliding scale when the Board establishes the inspection tax for all livestock in excess of 34 cents per head, the Board action establishing the fees for nonslaughter livestock at 38 cents per head and for slaughter livestock at 30 cents per head is not authorized by law.

SUMMARY

A per-head inspection fee of 40 cents for horses and a lower per-head inspection tax for other nonslaughter livestock violates § 35-41-104(1), C.R.S. (1991 Supp.). A per-head inspection tax of 38 cents for nonslaughter livestock and 30 cents for slaughter livestock also violates § 35-41-104(1), C.R.S. (1991 Supp.).

Sincerely,

GALE A. NORTON Attorney General

AGRICULTURE LIVESTOCK ANIMALS FEES

Section 35-41-100.3(5), C.R.S. (1984) Section 35-41-104(1), C.R.S. (1991 Supp.) Section 35-50-105, C.R.S. (1984) Section 35-50-107, C.R.S. (1984)

STOCK INSP. BD, DIV OF.

Pursuant to § 35-41-104(1), C.R.S. (1991 Supp.), the State Board of Stock Inspection Commissioners may not: charge a 40 cents per head brand inspection fee for nonslaughter, horse livestock and a lower per-head inspection fee for other nonslaughter livestock; nor charge 30 cents per head for slaughter livestock and 38 cents for nonslaughter livestock.

¹ For purposes of this opinion, slaughter livestock encompasses only livestock shipped to slaughter directly from a feedlot within 24 hours after inspection in such feedlot.

¹ The single exception was sheep which were (and are) charged under separate statutory authority on the basis of 1 cent per head. See §§ 35-50-105 and 107, C.R.S. (1984).