# Petition for Writ of Certiorari — Clark v. Dwyer (No. 531)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1960

## Text

IN THE

| SUPREME COURT
ini ties

Pa

e October Term, 1960
_ No.
CeciL C. CLARK and CATHERINE CLARK,

_ husband and wife, Appellants,
vs.
_ JOE DWYER, Director of Agriculture
of the State of Washington, : “Respondent.

PETITION FOR WRIT OF CERTIORARI
| TO THE SUPREME COURT >
* OF THE STATE OF WASHINGTON

CUTLER W. HALVERSON

| 303 Fast “D™ St., Yakima, Wash.
*
a

Fea, eden gb Mine:

z INDEX

Page
Opinions in Courts Below.) oe eee cece ee s
Grounds on Which. Jurisdiction of this Court is Invoked - 6
Questions Presented for Review... 6
Constitutional Provisions Involved........... ile reas! 9
Statement of the Case... eaerqinnie 5
eee SERRE Te OMIM STOCAE, EEE BR ees

Conclusion ....... FA Tne SOL AN a LAN COBY © SSE OU 25

TABLE OF CASES
— G.A.F. Seelig, Inc.,

294 U. S. 511, 79 L. Od. 1032, 55 S. Ct. aera 17, 18
East New York Savings Bank v. Haan; New York,

66 S. Ct. 69, 326 U. S. 230, 90 L. Ed. 34... 15
Hood v. DuMond, 36 U. S. 525, 93 L. Ed. 865..........17, 18

Indianapolis Brewing Company v. Liquor Control Com-
mission at Michigan, D. C. Mich., 21 Fed. Sup. 1969, -
affirmed 59 S. Ct. 254, 305 U. S. 391, 83 L. Ed. 243.... 15

Miller v. Schoene (1926),,146 Va. 175, 135-S. E. 813,
aff'd 276 U. S. 272, :72 L. _Ed. 568, 48 S. Ct. 246... Ce Deke 17

Mugler v. Kansas, | =~
- 123. U. S. 661, 8S. Ct. 273, 31. Se 23

Nebbia v. People of the State of New York, § -
291 U. S. 502, 78 L. Ed. 940, 54'S. Ct. 505... me me

oy ‘Gorman & Young v. Hartford F. Insurance aug:
282 U. S. 251, 75 L. Ed. 324, 51 S. Ct. ose Pma el 22
Olson v. Nebraska (1941),
is U. $. 236, SL. Ba. T908......2: 20, 23
Queenside Hills Realty. Company v. . ea. New York,
66 S. Ct. 850, 328 U. S. 80, 90 L. Ed. 1096 noes ak eee 15
‘Ribnik v. McBride,
277 U. S. 350, 72 L. Ed. 913, iss S.Ct. 343 SE eS

Sligh v. Kirkwood,

237 U. S. 52, 59 L. Ed. 835, 35 S. Ct. 502.0... 17

‘Sunshine Anthracite Coa! Co. v. Adkins, .
310 U. S. 381, 84 L. Ed. 1263, 60 S. Ct. 907!.......... a.

e

P

?

anne

a

.

Tagg Bros. & Moorehead vy. United States, . ‘
280 . U. S. 420, 74, L. Ed. 425, 50 S. i ee 22

Tyson & Brother-United Theatre Ticket Officers, Inc.
y. Joab H. Banton, 273 U.S. 418. 71.L. Ed. 718,

illinscaen perc at EN ate 20
U.S. v. Rock Réyal Cooperative, pee ie es
_ 307 U. S. 533, 83 L. Ed. 1446, 59 S. Ct. 993. 22
West Coast Hotel €o. v. Parrish, oe |
300 U. S. 379, 81 L. Ed. 703, 57S, Ct. 578 a 2
ae STATUTES _ :
. Laws of 1959, Chapter 230... 7, 9, 10, 11, 13, 18, 24
"RCW 15.16 SSG nicate ee 13
RCW 15.16.0100 Sareerr nisi 10
RCW 15.18.080... ee — 7
re Reneerietsyene nai OF
28 U.S.C., Sec. 1257(2), 62 Stat. ot
*» CONSTITUTIONS
U. S. Constitution, Art. 1, Sec. 8... bistoecaasctupcasisans 7
U. S. Constitution, Fourteenth Amendment... 7
. x

IN THE

‘SUPREME COU RT

OF THE _
©. . UNITED STATES

. October Term, 1960

No.

ee

Cecit C. CLARK and C ATHERINE CL ARK.

husband and wife, , A pipe —s
_ : Vs.
JOE DWYER, Director of Agr iculture
of the State of Ww ashington, . — Respondent.

IN THE SUPREME COURT OF THE
~ STATE OF WASHINGTON -

_ OPINIONS IN COURTS BELOW’ .

The opinion of the Supreme Court of the State of
Washington has been officially reparted as Vol. 156,
Washington Decisions, No. 12, p. 440; Petition for
_ Rehearing Denied, Vol. 156, Wash. Dec. No. 18, p.
557. It is printed as Appendix A ‘to this petition. .
The decision of the Superior Court of the State of
Washington was embodied in an order overruling
the-demurrer which is contained in the transer ipt.on
file herein and no opinion was written in connection
therewith.

Pee at eterna

6
‘GROUNDS ON WHICH JURISDICTION

, OF THIS COURT IS INVOKED

‘The opinion and judgment of the Washington.
State ‘Supreme Court sought to be reviewed was
dated and filed J une 30, 1960. A petition for re-hear-
ing was denied August 19, 1960,

Section 1257 (2) of Title 28, United States Code,
Act of June 25, 1948, c. 646, 62 Stat. 929, is believed
to confer on this court jurisdiction to review the.

judgment in question by writ of certiorari.
, QUESTIONS PRESENTED FOR REVIEW

The Appellants present the following questions :
for review. ne Phas al

I. .

Is there today; any limitation upon the ends a_

state may seek to ‘accomplish by use. of its police-
power? *

. Il. ya

Is the term “general welfare,” as used in the tra-.

ditional classification of the police power, i:e., that

power exercised by the state for the protection of

the health, safety, morals and general welfare of its -.

people,-a generic term related to the objects preceding

it, or, does ‘it mean that the State can deprive an .

individual of his ‘property when the only claimed
benefit is the improvement of the state’s competitive
and commercial position and which admittedly bears -

‘ne relation other than that to the ‘general welfare

of the state?

7
. III. ~

Can a state permit the sale of a green apple and
forbid the . Winesap Twenty percent
4. King David ert Fifteen pereent
5. Delicious * Twenty percent
6. Staymen Winesap Ten percent
7. Vanderpool * Ten percent
8.

Black Twig Ten percent

12
9. Jonathan - Ten percent:
10. MeIntosh | Ten percent
11. Rome . Ten-percent -
12. Red Sport varieties ' Twenty percent |

Whenever red sport varieties are marked as

such, they shall meet the color requirements of

red sport varieties. "i

5 Sec. 3. The effective date of this act shall be
August 1, 1959.”

The color: requirements set forth in Section 2 of
the act apply to the Fancy grade of the red and par-
tial red varieties. By eliminating C-Grade apples of
the red and partial red varieties and by. decreasing
. by 5 per cent the color requirements for the Fancy
Grade the enactment of Chapter 230 results in at
least 6624 per cent of: the former C-Grade apples of
the red and partial red varieties being classified as
Culls. That such cull classification allows retail ship-
ment and marketing of said apples only in marked
bushel baskets in conformity with R.C.W. 15.16.160
which reads as follows: :

15.1€.160 APPLES—CONTAINER MARKINGS
—CULLs. No ‘person shall buy, sell, offer for
sale, ship, or transport any apples to or for mar-
ket unless the same have been graded and com-
ply with all gradin requirements; and if the
“ope are culls, unless-every container, label.
bill of lading, invoice, memorandum and other
document describes and defines their grade, va-
riety and size; nor ship or transport culls out
of their area of production, oe i to processing
ylants, unless they are packed in one-bushel
askets, ring-faced and lidded, and the name
“culls” appears on the top and bottom of each
container and any labels thereon in clear, legi-
ble letters at least two and one-half inches high.

et ec? ct ‘et

tv

13
Apples in the ring- -face shall be represenative of
the contents, as to size and quality.

The elimination of C-Grade by the elassification
thereof as culls as required by Chapter 230, decreases
their market value in that they can only be sold to
processors as culls, ov in accordance with R.C.W.

15.16.160. The market price in either case is 75. per
cent less than it would be if the apples w ere sold as
C-Grade. . .

The Director of heehee of the State of Wash-
ington is, charged with the enforcement of Chapter
15.16 R.C.W., which includes Chapter 230, Session

Laws of 1959, eliminating C-Grade apples of the red

and partial red varieties and it is admitted that Pe-
titioners will be prosecuted criminally if they violate

‘Chapter 230 by the sale of the C-Grade apples con-

trary ta the provisions of said law. It is further ad-
mitted that the enforcement of said law will irrep-
arably damage Petitioners by depriving them of val-
uable property and property rights contrary to the

- provisions of the state and federal constitutions *

9 to. 16).
Based on the facts above set forth, Petitioners
alleged two causes of action. The first cause was for

a declaratory judgment, declaring .the statute un-

constitutional and, the second cause of action was
for a restraining order pendente lite and for a per:
manent injunction permanently enjoining the Re--
spondent from enforcing said chapter.

Respondent demurred to Petitioners’ amended
complaint (Tr. 17-18) and after hearing and argu-

\

as toe

ment, Respendent’s demurrer was overruled (Tr.
20). Respondent elected to stan ‘on his. demurrer
and not plead further with the result that judgment '
was entered declaring Chapter 230 unconstitutional:
and permanently en joining Respondent from enfore-
ing said law (Tr.-21 ). From this decision, Respond-
ent appealed and the Supreme Court of the State of
Washington reversed the decision of the trial court.

REASONS FOR GRANTING THE WRIT

The decision of the Washington State Supreme
Court should be ‘reviewed because it presents to this —
final appellate body the opportunity to decide wheth-
er.or not there is today any actual limitation upon
what a state may do in the regulation of human en-
deavor in the name of its police powers. :

‘That the precise question cries for answer, must
be recognized by every constitutjonal student. It is
submitted that the issue could not. be presented with
more dramatic simplicity than it is in the case at bar. _

A farmer in south central Washington grows ap- —
ples for a living. Because the nights there are more
moderate than in the country of his counterpart to
the north, the apples that he grows do not get quite —

as red, This is the only differenee. The apples are
equaliy delicious and nutritious; they cook, ship and
store equally well and there is absolutely: nothing in
the color differential ‘which is detrimental to the
public safety, health or morals or which does in any-
Wise constitute a fraud upon the public.

The State of Washington, admitting all this, none-

theless has decided that the competitive position of

its apple crop im foreign markets would be improved — ~

if only the red apples.are marketed. In its wisdom it
declares a color line and provides that the sale of all
apples falling below it shall be, as a practical matter,
prohibited. The result, of course, for the farmer and
all thos¢ similarly engaged is a disastrous depriva-
tion of his livelihood. _ .
_ Where then is the limit on the police power of a
state? Recognizing the difficulty, or for that matter,
the undesirability: of exactly defining the scope of
the police power, conceding that in the exercise of
_ its police power the state has wide discretion fn de-
termining its own public poli¢y and what _measure®
are necessary for its own protection and properly to
- promote the safety, -peace and good order of its
people, East New York Savings Bank v. Haan, New
York, 66'S. Ct. 69, 326 U. S. 230,90 L. Ed. 34. agree-
_ ing that the police.power is one of the least limitable
‘of the powers of governme nt, Quecenside Hills Realty
Company uv. Saxl, New York, 66 S. Ct. 850, 328 U.S.
80, 90 L.- Ed. 1096, that the phr: ase is not to be lim-
ited by narrow connotations; Indianapolis Brewing
Company v. Liquor Control Commission at Mich igan,
D. C. Mich., 21 Fed. Sup. 1969, affirmed 59 S. Ct.
4o4, 305 U.S. 391, 83 L. Ed. 243—nonetheless, if
a state can substitute its judgment of What is good
for business, for the judgment of the people in that
business, deprive a man of his property in doing so .
and justify this deprivation by simply labeling its
acliVity as an exercise sa power, then it must

a.
.

16

be agreed that there is no point at which the all con-
suming power of the state must yield to the rights
of the individual.

Nor can this-awesome conclusion be avoided with -

‘the generality that the means efnployed by the State
in the exercise of its power must be reasonable. Once
_ the premise is accepted that the State of Washington
can legitimately regulate for a strictly mercantile
purpose, then it* must follow that the means in the

case at bar, the. prohibition of the sale of partially |

red apples, is, at least, remotely related. with some
reasonableness to achieving that- purpose. | 8

Likewise, if the premise is accepted that this is
a legitimate end of a State’s legislative activity, then
it must’ follow that the state in its wisdom @auld
decide that the. Washington pear crop would be ad-
Vantageously assisted in’ the market by the prohibi-
tion of the sale of all apples. Again, one would have
to concede that sueh a means was reasonably related
to achieving the end. | :

Thus, the issue is narrowed, for, if the state is
completely unrestricted as to the areas in which it
may legislate in the name of the police power, its

choice of means to achieve that purpose can always

be. justified as bearing some relationship to accom-
plishing the object of the legislation. Certainly, the
classification requirement, which we so often concern
ourselves under the equal protection provision of
the Fourtéenth Amendment, will cease to be an im-
portant barrier for individual rights and liberties.
Keep in mind that in the legislation involved. in

Ww

the court below, that there is no pretense; no claim

that the object ofthe legislation is to protect public

health such as concerned the court in the case of

' Nebbia v. People of the State of New York, 291 U.S.

502, 78 L. Ed. 940, 54S. Ct. 505.

The demurrer admits that.the legislation was. in
nowise aimed at improving standards. to prevent
fraud or protect the public from unfit or deleterious
fruit as was the case in Sligh v.. Kirkwood, 237 U. S.
52, 59 L. Ed. 835, 35 S. Ct. 501. (A fact which the .

- court below blithely ignored. )

Nor is the objective of the act related to the preven-
tion of diseast in the apple industry as was reviewed
in Miller v. Schoene (1926), 146 Va. 175, 135 S. E.

813, aff'd. 276 U. S, 272, 72 L. Ed. 568, 48S, Ct. 246.

Here, without any subterfuge, the State of Wash-

ington is asserting its right to deprive an individual

of his business and property on the basis that it can
legislate, within the scope of its police, power, in the
economic area, without relation to. social 6r economic
evils aside from the competitive status of the apple
industry itself, .

One is tempted to submit. that a sufficient reason
for granting this writ is the marked conflict of the
decision of the W ashington State Supreme Court
with the decision of this court as found in two recent
cases dealing with the impact of similar legislation
under the commerce clause. Baldwi mud, A. F. Seclig,
Inc., 294 U.S: 511, 79.L. Ed. 1032, 55 S. Ct. 497;
Hood v..DuMond, 36 U. 8.525, 98 L. Ed. 865. There

‘ is no difference essentially in the object of the legis-

‘»

3 18°

lation in the casé at bar and the legislation involved
in those cases. Nor, is there any difference, esgential-
ly, in the effect. of the legislation upon interstate
commerce. By Chapter 230, Laws of 1959, the State
of Washington seeks to improve the competitive posi-
tion of its apple industry in foreign markets. In
plain language, it designs to obtain 4 higher price for
Washington apples by submitting only those of the
reddest and most attractive color for sale. By pro-
hibiting the sale-of partially red apples or by preju-
dicing their sale in. interstate commerce by requiring
them to be branded as “culls,” the state may con-
ceivably gain an economic advantage. But look at the
effect of its conduct on the purchaser in foreign mar-
ket. He is practically deprived of an opportunity to
buy a product equally ‘good at a lower price. Doesn't
this fly in the face of the language of Justice Cardozo’
to ghe effect that “neither the power to tax nor the
police power may be used... With the aim and effect

of establishing an economic barrier against competi-

tion with the products of another state or the labor of
its residents.” Baldwin v. G.A.F. Seclig, Inc., supra.

The practical effect of the legislation under seru-
tiny is to withhold the sale of apples ffom export. It
is Unquestioned that the State of Wash’ Mgton has no
right to directly curtail the movement of apples into
or out of its state. In no case has our Supreme Court
sustained the right of a state to do this unless the
lieasure is supported by health or safety considera-
lions, and in the case of Hood v. DuMond, supra, ou
cous expressly held that when the sole argument

19

advanced to justify the legislation is that it furnishes
protection of local economic interests, such attempted
regulation is prohibited by the commerce clause. To
quote directly from the opinion of Mr. Justice Jack- .
son:

“It recognized, as do we, broad power in the
State to protect its inhabitants against perils to
health or safety, fraudulent traders and high-
way hazards, even by use of measures which
bear adyersely upon interstate commerce. But
it laid repeated emphasis upon the principle:
that the state may not promote its own economic

- advantages by curtailment or burdening of in-
terstate commerce.”

In the same opinion can be found a rationale stir-
ringly appropriate to the position of Petitioners.

‘Our system, fostered by the commerce clause,
is that every farmer and every craftsman shall
be encouraged to produce by the certainty that
he will have free access to every market in the
nation, that no home embargoes will withhold
his export, and no foreign state will by customs,
duties: or regulations exclude them. Likewise,
évery consumer may look te the free competi-
tion from every producing area in the nation to
protect him from exploitation by any. Such was
the vision of the founders; such has been the
doctrine which has given it reality.” _
While we consider the foregoing a complete reason
not only for granting this petition but for the event-
ual reversal of the decision of the Supreme Court of —
* the State of Washington, we would point out still
an additional attraction for the court to consider this _
petition favorably. |
There is today, a conviction held by many students

20

of constitutional law, that there is actually no limit
to what a sovereign may do in the name of its police
powers. The concept is real. The conclusion is dis-

turBing. That it exists can be established by ‘simple

reference to the opinion ot the court below.
4 )

“At page 9, the writer of the opinion asserts this:

remarkable circle: °

“If the legislature can regulate the marketing
of these products at all (and, as we have said. it
can do so where it finds that it is in the public,
interest to protect the reputation and welfare
of the industry), it can refine those regulations
or change them to further the legitimate pur-
poses of the law”! ,

In fairness to Judge Rosellini, it must be conceded

that his position finds some foundation in the devel-
onnient of the law related to this issue through. the
- years of extreme social and economic transition oc-
curring between the early case of Tyson & Brother-
United Theatre Ticket Officers, Inc. v. Joab H. Ban-
ton, 273 U. S. 418, 71 L. Ed. 718, 47 S. Ct. 426, and

Ribnik v. McBride, 277 U. §. 380, 72 L. Ed. 9138, 48 *
S. Ct. 543, until the full circle from the doctrines . |

expressed therein was accomplished in Olson v. Ne-
braska (1941), 13 U.S, 236, 85 L. Ed. 1305.

In the Tyson case, supra, J udge Sutherland in de--
tailing his test of a “business vested with a public
interest,” said as follows: |

“The power to regulate property, services or

business can be invoked only under special cir- |

cumstances and it does not follow that because
the power may exist to regulate in some partic-
* ulars it exists to regulate in/ others or in all.”

¥)

21
After reviewing the development’ of the police
power, he continued: |

“The authority to regulate the conduct of a
business or to require a license comes from a
branch of the police power and which may be
quite distinct from the power to fix prices. The
latter, ordinarily. does not ‘exist in’ respect to
merely private property or business but exists
only where the business or property involved has
become ‘affected with a public interest’. This
phrase, first used by Lord Hale two hundred
years. ago, it is true, furnishes at best an indef-
inite standard and attempts to define it have
resulted, generally in producing little m6re than
paraphrases which themselves require elucida- -
tion. Certain properties and kinds of business
it obviously includes, like common carriers, tele-
graph‘and telephone companies, ferries, wharf-

age, ete. Beyond these its application not onlv
has not been uniform, but many of the decisions
disclosed to members of. the same court in radi-
cal disagreement. Its full meaning, like that of :
many other generalizations cannot be approxi-
mately defined ;—it. can only be approximated.

merely because it is large or. begduse the public
are warranted in having a féel*ng of concern in
respect to its: maintenance. Nor is the interest
meant such as arises from the mere fact the
public derives benefit, accommodation, ease or
enjoyment from the existence or operation of
the business; and while the word has not.always
been limited narrowly as strictly denoting ‘a
right’, that synonym more nearly than any other
expresses the sense in which it is to be under-.
stood.” |

A business is not affected with pis interest

No sooner was this doctrine announced than the.
drift away from it began. .

me

In 1930 the power of the Seer etary of Agr ‘icultur
under-the Packers and Stockyards Act to determin
the just and reasonable charges of persons engage¢
in the business of buying and selling interstate com.
merce livestock at a stockyard ona commission basis
was upheld. Tagg Bros. & Moorehead v. Unitec
States, 280 U. S. 420, 74 L. Ed. 425, 50 S. Ct. 220

In 1931 a New Jersey statute limiting commis-
sions of agents of fire insurance companies was,sus-
tained by-O’Gorman & Young v. Hartford F. Insur-
ance Company, 282 U.S. 251, 75 L: °Ed. 324, 51S.
Ct. 130.

We have already alluded to the ¢ case of Nebbia v.
New York, supra, where the fixing of milk pr ices to
hold competitive levels to a point which would permit
sanitary handling was upheld. Minimum wages for
women and minors were sustained in West Coast Ho-
tel Co. v. Parrish, 300 U. S. 379, 81 L. Ed. 703, 57
‘S. Ct. 578. Minimum prices and minimum wage and
maximum hour proyisions were sustained in U. 8.

'. Rock Royal Cooperative, 307 U.S. 533, 83 L. Ed.
ek 09 S.Ct. 993, decided in 1929. and j in Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S S. 381, 84 L.
Ed. 1263, 60 S. Ct. 907, decided a year earlier.

All of these were obviously cases which upheld the
States’ intervention into the economic area. However,
all of these ave equally obvious examples of where
the end or object of the legislation bore a striking
relation to a goal, social or economit, which was de-
sirable apart from the mere merchantile interest of
an industry.

23

. The same obvious difference was presented factu--
ally ‘in Olson v. Nebraska, supra. It takes no great
imagination to appreciate that the general welfare
of the people of the State of Nebraska was within

the purview of a statute which sought to limit the

charges of a private employment agency. However,
the language used in the latter decision and the doc-
trine expressed in the following quotation from that
opinion gives rise to the fears that exTstin the minds
of many, ‘that there is no. longer a limit to what ob-
ject or goal the state may.seek to achieve under the
guise of its, police power. . Bey:

In stating that the court could no longer give con-
tinuing vitality to a rule which permitted regulation
under the police power of the state only as to those
businesses “vitally affected with the public interest,”
it was said: | | ,

“We are not concerned, however, with the wis-
. dom, need’or appropriateness of the legislation.
Differences. of opinion on that score suggest a
choice which ‘should be left where’. .. it was ~
left by the constitution, to the States and to
Congress’.”’

Note the striking similarity of that language to
the excerpt from the opinion of the Washington Su-
preme Court set forth above! Here, then, is a source
of real and vivid concern. me

Is this the law? Will the court stand on the state-
ment that it will never inquire behind a legislative
declaration that its activity is a valid exercise of
the police power? Has the court abdicated the posi-
tion stated so forcibly in the ease of Mugler v. Kan-

°

24

sas, 123 UW. S. 661, 8 S. Ct. 273, 31 L. Ed. 205. wi
it said: |
_ “The courts are not bound by mere forms, 1
are they to. be misled by mere pretense. T}
are at liberty—indeed, are under a solemn dt
—to look at the substance of things whene
- they enter upon the inquiry whether the leg
lature has transcended the limits of its auth
ity. If, therefore, a statute purporting to ha
been.enacted to protect the publie health. t
public. morals, or the public safety has no re
or substantial relation to those objects, or is
palpable invasion of rights secured by the fu
damental Jaw. it is the duty of the court to
adjudge, and thereby give éffect to the const
tution.”
Chapter 230, Laws of 1959 of the State of Washin:
ton, makes no claim to have been enacted to prote
the public health, morals or safety. It'asserts no pr
tection against fraud. nor does it recite evils flowin
from. unbridled competition or low prices. It is just
fied only in terms that the possibility of its promo
ing-Washington’s apple industry was not preclude
by the pleadings. U pon serutiny: its only conceivab!
object can be the monetary improvement of a loes
industry, achieved by abolishing a part thereof with
“out any other justif cation for doing so. If Washing
ton State can legislate in this. field on no other basi
than the one suggested, then it can legislate in an:
field, and, if the court refuses to look beyond a legis
lative declaration that in ‘doing so ‘it exercises it
police power,-if the court considers itself bound bi
such a declaration, then where is the guarantee to ar
individual's seeurity in his property? What has hap

ae)
ev

When :

Ss, nor °
They /
| duty.
never

legis-
ithor-

have
1, the

> real .

risa

‘fun-. .

to so

ynsti- ;

hing-
otect
pro-
wing
usti-
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uded
‘able
local
yith-
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ASIS
any
vis-
its
| by
yan
aap

25

pened to the individual’s right to pursue the endeavor

‘of his choice so long as it does not unreasonably i im-

pose upon his neighbor? If the professed object of a
legislature cannot be challenged by this court, ®

_ whom will the individual turn?

It is interesting, perhaps ironic, that in the deli-
cate difference of the shade of two apples there should
be suspended the age-old question of where the power

* of the state must yield to-the rights of the individual.

In this, pastel background, there is set an issue
just as real, a right just as basic and vital as those
shaded in black and white w ‘ith which this Court has
been so much concerned of late! We earnestly submit

~ it is one which deserves and demands this court’s

attention.

. CUTLER W. HALVERSON
303 East “D™ St., Yakima. Wash.

Poe ai a ALAN A. McDONALD
A "303 East “D” St., Yakima, Wash. °
Attorneys for Petitioners
- Cecil C. Clark and Catherine Clark

"

IN THI

SEPREME COURT.

THE:

UNITED STATES oF

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IN. THE

SUPREME COURT

(OF THE: -
UNITED STATES

October Term, 1960

No.

4 *, ae
Ceci. C. CLARK and CATHERINE CLARK.
husband and wife, - Appellants,
Vs.
Jor Dwyer, Director of Agriculture
of the State of Washington, .__ Respondent.

APPENDIXE§S ACCOMPANYING PETITION
~ FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF -THE STATE OF -WASHINGTON

CUTLER W. HALVERSON
0s bast “DO Se.. Yakima. Wash. -
*

ALAN A. MCDONALD
Mes bast “DP St. Yakima. Wad.

{florneys fer Petitioners
Crenl CC dark and ¢ athertom Clack

=

ru

SR bse Ce

i SS ants ss.

» . . INDEX
APPENDIX “ A”

_ Page

EN BANC Onin nion of the ee ‘eme Court of the
State of Washington

Vol. 156, Washington Decisions No. 12, P. 440; Petition
for the re-hearing denied August 19, 1960, Vol. 156,
Washington Decisions No. 18, P. 557 (Ceci! C. Clark
and Catherine Clark vs. Joe Dwyer, as -Diréctor of
the Department of Agriculture of ‘the State of Wash-
ington) °

APPENDIX “B”

TR ANSCRIPT OF PROCEEDINGS IN STATE COURT

Amended Complaint in the Superior Court
of the State of Washington

Demuryer in the Superior Court |
of the State of Washington

Or der Overruling Demurrer in the Superior Court
. of the State of Washington

Judgment in the Superior Court
of the State of Washington

Notice of Appeal in the Superior Court
of the State of Washington.

Judgment in the Supreme Court

of the State of Washington .. a,

Judgment on Remittitur in the Superior ‘Court
of the State of Washington .

s)

25

40 —

°. APPENDIX “A” -;
Vol. 156, Washington Decisions No. 12, P. 440.,
Petition for Re-Hearing Denied August 19, 1960

Vol. 156, Washington Decisions No. 18, P. 557
IN THE SUPREME COURT OF THE |
STATE OF WASHINGTON

.-

Crci C. CLARK and CATHERINE -)
CLARK, husband end wife. , 8
. Respondents, | No. 35280
! ¥, | EN BANC
Jor Dwyer, as Director of the ‘-/- Filed
Department of Agyiculture of June 30, 1960
the State of Washington, : —*
; Appellant. |

?

/
4
#
|
4
3
:
5

The plaintiffs in this action, on behalf of them-
selves and all others similarly situated, challenge the
constitutionality of chapter 230, Laws of .1959;
which amends chapter 222, Laws of 1939 (RCW
15.16,080). A demurrer to the complaint was over-
ruled, and, the defendant refusing to plead further,
judgment was entered enjoining the defendant, Di-.
rector of the Department of Agriculture of the State
of Washington, from enforcing the provisions of
this agreement.

Laws of 1939, chapter 222 § 1, p. 931, provides:

“It shall be unlawful for any person, firm;
corporation, trust, association, co-operative or
othtr business unit or device to pack, ship or sell
apples unless such apples are séld, packed and
graded in compliance with the general rules and

regulations made. adopted and’ promulgated
from time “to-time by the iceaee. of Agricul-
ture pursuant to section 4 of chapter 27 of the
laws of 1931 . . . Within sixty (60) days aft-
er the taking effect of this act general rules and
regulations shall be adopted and promulgated

Sennen aed
\

ie Fee ae
defining and establishing: the following grades:
“(a) Extra fancy -- i
“(b) Fancy |:
“(c). C grade
“(d) Culls
“(e) Infested culls.” ° 7
Section -4, chapter 27; p. 86, Laws of 1931. pro-
vided for the promulgation of grading rules only

after official public hearings pursuant to such rea- |
‘sonable rules prescribed ‘by the director as should

insure a full, fair and impartial opportunity for all

interested districts to be heard; and further provided

that the grading rules should be based upon the ne:

cessities and properties as shown in the hearing, -

taking into consideration the commercial tonnage of
said products in each district affected by said rules.
This provision is now eontained in RCW 15.16.010.

Chapter 230, p. 1070, Laws of 1959, reads as fol-
lows: | ere

“The director shall adopt and promulgate

rules and regulations establishing the following
grades of apples: For. green and yellow vari-

_eties: (1) Extra fancy, (2). faney,.(3) C grade,
(4) culls, and (5) infected culls. For red and
artial red varieties: (1) Extra faney, (2)
ancy, (3) culls, and (4) infected culls.

“No person shall pack, sell, or ship apples un-
less the same comply with the rules, regulations
and grades adopted pursuant to RCW 15.16.-
Or@& = :.. : ,

“Sec. 2. There is added to.chapter 15.16 RCW

a new section to read as follows:
“The director when establishing standards of

vo Soo 2a TT

i
color requirements for red varieties and partial —
red varieties of apples shall establish: color
standards for such varieties which are not less
than the following: — | 7

“1. Arkansas Black Fifteen percent
“2. Spitzenburg (Esopus) Fifteen percent
“3. Winesap _ Twenty percent
“4. King David. Fifteen percent
“5. Delicious | - Twenty percent
“6. Staymen Winesap Ten percent.
“7, Vanderpool ‘Ten percent
“8. Black Twig | Ten percent
“9. Jonathan | Ten percent
“10. MeIntosh Ten percent
“11. Rome Ten percent
“12. Red Sport varieties _ | Twenty percent

“Whenever red sport varieties are marked as
such, they shall meet the. color requirements of
red sport varieties.”

By § 1 of this act the legislature eliminated ‘the

' third, or C grade, as to red and partial red varieties

of apples, while retaining it as it applies to green and

Yellow varieties of apples. Section 2, according to the
allegations of the complaint in this action, sets minj-

mum color requirements to which the Director of
Agriculture may lower existing color requirements
of the second, or “fancy,” grade of red and partial
red.varieties of apples. Such minimym color require-
ments, if adopted, would lower the boc color re-
quirements for “fancy” grade of red and partial red
Varieties by five per cent. eas

According to the allegations of the complaint, the °
apples which have heretofore been graded as “C
grade” are as edible and healthfut as those which
have been graded “fancy” or “extra fancy..”

: 8

Under the new ®rading system, two-thirds of the
apples formerly designated as C grade will now be
classified as culls, while one-third will fall into the
“faney” category. Those which are graded “culls”
ean, under the provisions of RCW 15.16.160> be sold
or shipped only in one-bushel baskets, ring-faced and
‘lidded, with the name “culls” appearing on the tep
and bottom of each container and any labels thereon
in clear, legible letters’ at least two and one-half
inches high, | | '

It was alleged that the state of Washington pio-
duces and ships more apples than any other state in
the United States; that according to the figures re-
leased by the State Department of Agriculture. there
were produced in the state in the year 1957, approx-
imately 33,000,000 bushels of apples of a value .of
about $73,000,000. In the year 1958, there were’
produeed approximately 30,000,000 bushels of a
value of about $75,000,000, anda similar production
is expected in 1959. Of the apples produced in the
state in these years, approximately ninety-five per
cent were of the red and gartial red varieties, and
tive per cent were of the green and yellow varieties.

During the 1957-58 crop year there were approxi-
mately 4,250,000. boxes of C grade apples of the red
and partial red varieties shipped in interstate com-
meree, and for the crop. year 1958-59, there were
approximately 2,500,000 boxes of C grade apples of
the red and partial red varieties available for ship-
ment. Prior to the effective date of the 1959 amend-
ment. all but.264,708 boxes of these had been shipped

&
gq

in interstate commerce. The price of C grade red
and partial red varieties during the’crop years of
1957-58 and 1988-59, was generally, $2 a box or
more, | '

Weather Conditions and low elevations are largely
responsible for the production of apples of C grade
of red and partial ved varieties; this giade is not.
. primarily a result of inferior farming nor growing
prnetices. C g ‘ade apples have less color than have
extra faney and fancy grade apples. (The regula-
tions attached to the complaint reveal that the.1e-
quirements as to shape and freedoni from damage
are less strict in the case of C grade apples.) Gen-
erally, apples mature earlier in the season at lower
elevations and in the more southerly parts of .the
state and have less opportunity to color; and in these
areas substantially larger quantities of C grade
apples of red and partial! red varieties are produced
than in other areas. . x

It‘is alleged that the manner heretofore allowed
for shipping and marketing C grade apples of red
and partial red varieties, is in no way detrimental
to the public safety, health, moralss or convenience,
nor does it constitute a fraud upon the public. It is
further alleged that the classifying. of C grade ap-
pies as culls would impair their value by prohibiting
_ their shipment in standard hoxes and requiring their
shipment in bushel baskets.

The validity of the amendment was challenged on
several grounds, which were consolidated for the

10

purposes of argument in this court and set forth as
follows:

“I. That said law violates the equal protection
and due process clauses of the State and Federal
Constitutions, being Article I., Section 3 and.
Section 12 of the state Constitution, and the
Fourteenth Amendment to the Constitution of
the United States.

“II. That said law is an improper, unwarrant-
ed and prejudiciai extension of the police pow-
ers reserved to the State of Washington.

“III. That said law is an unlawful delegation
of the legislative authority.

. “IV. That said law violates Article I, Section
8 of the Constitution of fhe United States which

is the commerce clause.” |
The question before the court is: Assuming the
allegations of fact contained in the complaint to be
true, do they Show the 1959 amendment io be an .
invalid exercise of the police power? _ - -
It must be borne in mind that the state constitr--
tion is not a grant. but a restriction on the law-
making power, and the power of the legislatuge to
_ enact ali reasonable laws is unrestrained excépt
where, either expressly or by fair inference, it is
prohibited by the state and federal constitutions.
Where the validity of a statute is assailed, there is
a presumption of the constitutionality of the legis-
_ lative enactment, unless its repugnancy to the con-
stitution clearly appears or is made to appear be-
yond a reasonable doubt. Port of Tacoma v. Parosa,
52 Wn. (2d) 181, 324 P. (2d) 438; In re Bartz, 17
Wn (2d) 161, 287 P. (2d) 119; Union High School

.
_—_

11 .
Dist. Now 1 v. Taxpayers of Un ion High School Dist.

No. 1,26 Wn. (2d) 1, 172 P. (2d) 591. Where pos-

sible, it will be presumed that the: legislature has

atirmatively determined any special facts requisite
to the validity of the enactment, even though no legis-
lative finding of faet appears in. me statute. State
cv red.Collicr v. Yelle. 9 Wn. (2d) 317, 333, 115 P.
(2d) 373.
As this court said in’ Gritn c. State Tas Comm., .
35 Wn. (2d) 1, 211 P. (2d) 651. at page 7.
“It must be remembered that the legislature
is the chosen representative of the ‘people. It
speaks for them. Under our constitution, the

legislature passes laws and repeals laws as the
-sole representativé of the people. xh

While the plaintiffs do not question the validity
of chapter 222, Laws of 1939, providing for the
promujgation of rules establishing grades of apples,
they fom that the 1959 amendment, eliminating
one of these grades in the case of red and partial
red varieties, is not a proper exercise’ of the police

_ power because it was not enacted to protect the pub-

lie health or prevent fraud. But, the police power is
not as limited as the plaintiffs contend. It has become
firmly established that the police power of the state
extends not only to-the preservation of the public
health, safety, and morals, but also to the preserva-
tion and promotion of the public weifare. State v.
Scars, 4 Wn. (2d) 200, 103 P. (2d) 337. As was said
in Shea v. Olson, 185 Wasit. 143, 53 P. (2d) 615, 111
A. L. R. 998:. |

“However difficult it may be to give a precise

12

or satisfactory definition of ‘police power,”
there is no doubt that the state, in the exercise
of such power, may prescribe laws tending to’
promote the health, peace, morals, education,
good order and welfare of the people. Police
power is an attribute of sovereignty, an essen-
tial element of the power to govern, and a func-
tion that cannot be surrendered. It exists with-
out express declaration, and the only limitation
upon it is that it must reasonably tend to cor-
rect some evil or promote some interest of the
state, and not violate any direct or positive man-
date of the constitution.” (Italies ours. )

In Sligh v. Kirkwood, 237 U.S. 52, 59 L. Ed. 835, .
39S. Ct. 501, the Supreme Court of the United States
was asked to declare unconstitutional a law, enacted
by the legislature of the state of Florida, forbidding
the shipment of citrus fruits which were immature
or otherwise unfit for consumption. It was the con-
tention of the petitioner that the act constituted an
undue burden on interstate commerce, and could not
be. justified as a proner exercise of the police power
because it was not calculated to protect the health of
the people of Florida. The supreme court held that
th&act was within the police power of the state, to .
protect the repuiation of one of its great industries,
saying:

is + + oe ‘wore power, in its broadest sense,
includes all legislation and almost every func-
tion of civil governnient. Barbicr t. Connolly,
113 U.S. 27. It is not subject to definite lignita-
tions, but is coextensive with the necessities of
the caSe and the safeguards of public interest.
Camfield v. United States, 167 U.S. 518, 524.

It #Ambraces regulations designed to promote \_
public convenience or the general prosperity or

wee ee

REL oH Te.

13
welfare, as Well as those specifically intended to
promote the public safety or the public health.
Chicago & C. Railwa} v. Drainage Commission-
ers, 200 U.S. 561,592.

ee

Y

‘. 2. The protection of the State’s reputation
in foreign markets, with the conseqtent beneti-
cial effect upon a great home industry, may have
heen within the legislative intent, and it cer-
tainly could not be said that this legislation has
no reasonable relation to the accomplishment of
that purpose.”

We are told by amicus curiae and by the respond: ,
ents in this case that the 1931 law was amended as
a result of a study of the difficulties.with which the
apple industry has been faced in recent years ‘in

‘marketing its products in the east. While this fact

does not appear.in the pleadings before the court, it
is not alleged in the complaint that the act was
passed for no legitimate purpose, and, as we have
said, the presumption is that a state.of facts existed
on which the legislation could properly be based. The
mere fact that the act was not necessary to promote -
the public health, therefore, is not sufficient to render
itinvalid, | :

The plaintiffs argue that the act denies them the.
right to market. their “C grade” apples, but we do °
not so understand it. It merely changes a system of
grading which had previously been established by
the legislature. As a vesult of this change, some ap-
ples which were previously graded for wiarketing in
boxes must now be packed in baskets, and on the
other hand, some’ apples which previously were °C

14

grade” may now be markéd “fancy.” 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 in-
dustry, 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 cuses, among them Sligh v. Kirk-
wood, supra, Detweiler v. Welch, 46 F. (2d) 75, 73
A. L. R. 1440, Nebbia'v. New York, 291 U.S. 502
78 L. Ed. 940, 54S. Ct. 505, 89 A. L. R. 1469, Mar-
shall ‘v. Department of Agric ulture, 44 Idaho 440,
258 Pac. 171, In re Fujii, 189 Cal. 55, 207 Pace. 537,
and Avon Western Corp. v. Woolley, 42 N.S. 8. (2d)
690, 266 App. Div. 529. In cases holding acts 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 Inman v. Sandvig, 170 Wash. 112, 15 P, (2a)
696, relied upon by the plaintiffs, this court held that
a rule adopted by. the Director of Agriculture pro-
viding that third grade apples should not be wrapped
nor packed nor lidded in a standard apple box, was
unreasonably discriminatory and violated the due’
process clause and the constitutional prohibition
against the gr anting of special privileges and immu-
nities. The decision resulted from a tinding that the
_ ruling was not based upon considerations of public

health. In se far ‘as the opinion reveals, it was not
argued that the provision was de signed to further the *

‘ 15

economic well being of the industry. The case was”
before the court after a trial on the merits, and the

only argument advanced in justification of the ruling

was that it would prevent deception—a contention

‘which the* court found had no basis in fact. The

principles governing the judicial approach to laws

passed in the exercise of the police power, were not.
discussed; and the question presented in this case

was not decided. The decision of that case, therefore,

does not determine the decision in this.

It is admitted that the effect of the amendment
is to inrpose ubpn the plaintiffs and other growers,
of what wer : formerly C grade apples, packing
requirements which will adversely affect the market
value of their produée. However, this in itself does
not constitute a deprivation of property without due
process of law. This court has Stated the applicable . °
principle in the leading case of State cv rel. Davis-
Smith Co. ve Clausen, 65, Wash. 156, 117 Pae. 110%
(upholding the constitutionality of the workmen’s
compensation act of 1911) in these werds, p. 19:
“Tf. . . the act in controversy has a reason-— ,
able relatien to the proteetion of the public
health, morals, safety or welfare, it is not to be
set aside because it. may incidentally deprive
some person of his property without’ fault or
take the property of one person to pay the obi.
gations of another. To be fatally defective in
these respects, the regulations must be se utterly
unreasonable and so extravagant in nature and

purpose as to capriciously interfere woth and
destroy private rights.”

The plaintiffs de not question the power of the «@

?

16

legislature to establish grades of edible apples and
‘to base the gradations primarily on color, They

do not challenge the constitutionality of the 1939 act
establishing such grades. They question only the
right of the legislature to change such grades, once
they hav e been established, if such a change operates
to reduce the mar ket value of their. produce. If the
legislature can regulate the mar keting of.these prod-
ucts at all (and, as we have said, it ean do so w here
it finds that it is in the public interest to protect the
reputation and welfare of the industry), it can re-
tine those regulations or change thein to further the
legitimate purposes of the law. If such changes in-
cidentally affect adversely the market value of sonic
of the produce in question, that is no more an objec-

tion now than it was when the regulatory law was.

initially enacted if in the judgment of the lecislature,
the best interests of the industry as a whole will be
served. Nowhere in the complaint do we find gn al-
legation that the 1959 amendment was not enacted
for any legitimate purpose within the confines of the
police power or that it was not reasonably calculated
to effect that purpose.

But it is urged that the law is arbitrary and dis-
‘criminatory because it has @liminated the C grade in
the case of red and partial red var ieties, but has riot
done so in the « case of the vellow anid green varieties.

Article I, § YR T the state constitution: and the
fourtee ‘nth tune nmdment to the Kederal constitution,
pronibitine special, privileges And immunities and
eiadivaniceing equal protection of the. law, requ’

aa

7. |
that class legislation must apply alike to all per-
sons within a class, and reasonable ground must
exist for making a distinction between those within,
and those without, a designated class. Within the °
limits of these-restrictive rules, the legislature has a
wige measure of discretion, and its determination,
when expressed in statutory enactment, cannot be
successfully attacked. unless it is manifestly arbi-
traty, unreasonable, inequitable, and unjust. Fac
' Grandview, 48 Wn. (2d) 342, 294 P. (2d) 402;
Bauer v. State, 7 Wn. (2d) 476, 110-P. (2d) 154;
State cv rel. Baéich v. Husey 187 Wash. 75, 59 P.
(2d) 1101; Northern Ceddi. Co. ve. French, 131
Wash. 394, 230 Pac. 887. It is universally held that
courts will not look too nicely into legislative acts to
determine whether a reasonable distinction exisis.
Fave v. Grandview, supra; Bauer, v. State, supra;
Northern Cedar Co. v. French, supra; Garretson Co.
v. Robinson, 178 Wash. 601,-85 P. (2d) 504.

The. legislature has: chosen to make a distinction
between these products on the. basis of color. The
plaintiffs do not deny the propriety of such dis-.
tinctions in the. grading of apples. Unquestionably,
the law applies alike te: all members ‘of. the same

‘ass. The growers of red and partial red varieties
are in.one class and the growers of yellow and green
varieties are in the, other, The latter varieties com-
prise only five per cent of the total apples grown and
marketed in this state.-It may well be that the legis-
lature found that the marketing of apples designate:b
as © grade in standard Washington apple boxes had

(18 if

- no adverse effect on the market value and reputation

of the fancy grades of yellow and green varieties
and, therefore, no change in the grading system for
these apples was needed. The legislature may have
found it to be a fact that color differences in the
yellow ‘and green varieties of apples are much less
pronounced than in the red and partial red varieties,
and have little significance in‘ the. mind of the pur-
chaser. | me

In any event, there can be no doubt that a distine-
tion exists, and the complaint does not show that it
is an arbitrary of unreasonable distinction. The al-
. legation, therefore, do not show that the act denies
the plaintiffs the equal protection of the laws nor
grants to others special privileges and immunities.

The plaintiffs say that the amendment constitutes |

an unlawful delegation of legislative authority. The
question of delegation of legislative authority was
examined at length by this court in the case of Senior
Citizens League, Inc. v. Department of Social Secur-
ity, 38 Wn. (2d) 142; 228 P. (2d) 478. At page 152,
this court said: Y

“The constitutional prohibition against the del-
-egation of legislative power does not preclude
the delegation to administrative 0 cers or
-boards of the power to determine some fact or
. State of things upon which the application of
the law is made ‘to depend, provided the law
entinciates a standard by which such officers or
boards must be guided. State ew rel, Chicago,
‘MA & St. PLR. Co. v. Public Service Comm ission,
Y4 Wash. 274) 162 Pac. 523; State v. Bayles,
121 Wash. 215, 209. Pac. 20° Royer vy Public

a

Utility Dist. No. 1, 186 Wash. 142. 56-P. (2d) -—

| et) |
y ae
1202; State ex rele Wash ington Toli Bridge Au-
thority v. Yelle, 185 Wash. 636, 82 P. (2d)
120; Morgan ve Departament of Social Security,
14 Wn. (2d) 156, 127 P. (2d) 686.

“The legislature may also, under proper cir-
cumstances, delegate to administrative officers
and boards, authority to promulgate rules and
regulations ‘to carry out an express legislative
purpose, or to effect the operation and enforce-
ment-of a law. Vail v. Scaborg, 120 Wash. 126,
207 Pac. 15; State v. Nelson, 146 Wash. 17, 261
Pac. 796; ln ve Gifford, 192 Wash. 562, 74 P.
(2d) 475, 114 A. L. R. 348; Home Owners’
Loan Corp. v. Raivsci, 196 Wash. 548, 83 P.,

(2d) 765; State v. Miles, 5 Wn. (2d) 322, 105

P. (2d) 51.” ;

Provision is made in RCW 15.16:010 for hear-
ings to determine the facts on the basis of which
the characteristics of the grades provided for in the
amendment shall be determined. The legislature has
provided a minimum color standard to guide the di-—
rector of agriculture. The determination of the exact
characteristics which should be assigned to each
grade could be made intelligently only after an in-
vestigation of pertinent facts and is a matter which
the legislature properly left to the administrative
agency which was best equipped to make that deter-
-mination. The complaint shovs no unlawful dele-

. , . « ; j i
gation of legislative power. |
— Tt is contended -that the act imposes an undue ;
burden upon interstate commerce; but it is: well
settled that, while Congress has the exclusive power
toeregufate interstate commierce, in the absence: of
congressional action in confliet therewith, a state

20 |

‘in the exercise of the police power may adopt legis-
lation designed to promote the publi¢e welfare; and,
to that end, may make regulations relative to the
disposal of the products of the state even though such
regulations may incidentally or indirectly affect in-
‘terstate shipments. Minnesota Rate Cases, 230 U. S.
352, 57 L. Ed. 1511, 33 S. Ct. 729; Sligh v. Kirk-
wood, supra; Detweiler v. Welch, supra,

- The complaint: having failed to state facts suffi-
cient to show that Laws of 1959, chapter 230, con-
travene some provision of the state or federal consti-
tution, the demurrer should hav e been sustained and
the action dismissed.

It is so ordered. .

WEAVER, C. J. MALLERY, DONWORTH, FINLEY, :
Ort, and HUNTER, JJ., concur. an )

FINLEY, J. (concurring )—I have signed the ma-
jority opinion, concur ‘Ying in. the views expressed
and the result reached therein with the following
observation:

I agree with the holding of this court in Inman v.
~ Sandvig (1932), 170 Wash. 112, 15 P. (2d) 696, if,
as I believe is proper, that decision is’limited to a
holding that, solely as a labeling device, the relegation
of certain grades of apples to inconvenient and un-
economical types of coritainers is constitutionally
unjustifiable. However, to the extent that the Inman
case has any broadet implications, conflicting with
the views expressed by the major ity In the instant
case, I believe the Jnman case shduld b¢ overruled.

Foster, J. (concurring in the resitt)—While I

ae

%

\ . 21 | ae

‘concur in the court's disposition of this appeal, in my

view Zninan v. Sandvig, 170 Wash. 112, 15 P. (2d)
696,\ was wrongly decided, cannot be distinguished

—~and should be expressly overruled.

HILL, J. (dissenting)—In my opinion, the ques-
tion in this case was decided in Inman a. Sandvig,
170: Wash. 112, 15 P. (2d) 696, contrary to the con-
tention of the appellant. In that case, the illegality
of the rules adopted by the Director’ ef Agriculture

_was challenged. Prior to August 1, 1932, extra fancy

or first grade, fancy or second grade, and C grade
or third grade apples, could be lawfully sold and
marketed in the standard apple box of the’ state of
W ashington: Pursuant to the rules and regulations
of the Director of Agriculture, on August 1, 1932,

the director adopted rules which prohibited the
Wrapping, packing, and lidding of C grade apples °

~ in the standard apple box of the state of Washington.

The evidence was that the. standard apple box of
determinéd dimensions was established in 1903, by
statutory law; that it had been the custom for many
yéars to pack and market apples grown in this state
in a standard apple box; and that the extra fancy,
fancy, and C grade apples were marketed by the use
of this container. The evidence also diselosed that C
grade apples, as defined by the rules prior to 1982,
were not detrimental to public health in their con-

‘sumption as food, and were as free from fault as
were the C grade apples defined by tlie rules adopted

August 1, 1952; that a very large quantity of apples
produced in this state each year were of the C grade,

22
as defined by the old rule; and that there Was no
necessity for therrule based upon consideration of
health, | + ea

This court stated, page 1182 -

“We are of the opinion that the rule adopted
and promulgated by the director of agriculture
on August 1, 1932, with reference to third grade
apples, in so far as that rule provides that third
grade apples ‘shall not be wrapped nor packed
nor lidded in a standard apple box of the state
of Washington,’ is unreasonably discriminatory
as against third grade apples in favor of first
and second grade apples, and in violation of
Art. I, § 3, of our state constitution, providing
that ‘no person shall be deprived of life, liberty,
or property without due process of law,’ and
ahr I, § 12, of our state constitution, providing
that

“No law shall be passed granting to any citi-
)zen, Class of citizens, or corporation, other than
municipal, privileges or immunities which, up-
on the same terms, shal! not equally belong to
all citizens or corporations.’

“The word ‘law,’ as used in this section. inani-
festly includes a rule made by any administra-
tive authority, as well as a law made by direct .
legislative authority. Our conclusion seems to
us so plainly correct as to render-it unnecessary
to an for any extended review or citation ‘of
the many court decisions and texts supporting
it. Tie controlling principles’ are well stated in
general terms in the text of 6 R. C. L. 196 as

follows:

“The constitutional guaranty that no person
shall be deprived of eed abs pi! without due
process of law may be violated without the phys-
ical taking of property for public or private use.
Its capability for enjoyment and adaptability to

e
*

23
some use are essential characteristics and at-
tributes without which property cannot be con-
ceived. Hence a law is considered as being a
‘deprivation of property within the meaning of
this constitutional guaranty if it deprives an
owner of -one of its essential attributes, or de-
stroys its value, or restricts or interrupts ‘its
common, necessary or profitable use, or ham-
pers the owner in the application of it to the
purposes of trade, or imposes conditions upon
the right to hold or use it, and thereby seriously
impairs its value. These general principles ap-
ply not only to statutes enacted by the legisla-
ture hut to the action of executive officers gen-

’ 99

erally’.
I am unable to distinguish Jnman rv. Sandvig,
supra, from the instant case and feel that the court

is bound by its holding.
HILL, J.

25
| APPENDIX “B”
TRANSCRIPT OF PROCEEDINGS
IN STATE COURT
IN THE

SUPERIOR COURT OF THE STATE OF WASHINGTON
- © IN AND FOR YAKIMA COUNTY

_ Ceci. C. CLARK and CATHERINE =) -
CLARK, husband and wife, | No. 43477

| Plaintiffs, | sMENDED

—.«
Joe Dwyer, Director of ae so naire

of the State of Washington.
Defendant.

COME NOW the Plaintiffs and leave of Court
_having been had and obtained file herein their
Amended Complaint and for a first cause of action
allege: }

I.

That at all times herein mentioned Cecil C. Clark
and Catherine Clark were and now are husband and
wife, residing in Yakima County, Washington, and
that they bring this action in their own right for.
themselves and on behalf of all other parties simi-
larly situated and having like right and interest.

Il.

That at all times herein mentioned Joe Dwyer was
and now is the duly appointed, qualitied and acting
Director of the Department of Agriculture of the
Stote of Washington,

; ey Ii.
That Plaintiffs rave been for many years and now
are engagee in the growing of red and partial red
varieties of apples in the State of Washington. which

26
Apple ‘sin substantial quantities have been and now
are packed, shipped and sold in interstate commerce,
IV.

That the State of Washington produces and ships
more-apples than any other State in the United
States. That according to figures released by the’
State of Washington, De ‘partment of Agriculture, f
there were produced in the State of W ashingten in
the year 1957 approximately 33,000,000 bushels of
‘apples of a value of: about $7 3,000,000, and there
were produced in the year 1958 approximately 30,-°
000,000 bushels of apples of a value of about $75,-
000,000, and that similar production is expected in
the year 1959. That the production of apples in the
State of Washington during the years 1957, 1958
and 1959 as herein alleged consisted of approximate-
ly 95‘« of the red and partial red varieties and ap- 4
proximately 5‘, of the green and yellow varieties. ,
That the production of the green and yellow vari-
eties is iner easing.

Fe, Por

That all varieties of apples were, prior to the en-
actment of Chapter 230, Session Laws 1959, State |
of Washington, marketed and shipped as ‘“‘Washing- .
ton Extra Faney”, “W ashington Fariey”, and ““Wash-
ington © Grade”. That the grade of said apples is
determined at time of. packing. That a substantial q
quantity of .apples shipped herétofore have been
Washington C Grade red and partial red varieties
of apples. That for the 1957-1958 crop year there
Were approximitely 4,250,000 boxes of'C Ca ade ap-

/ |

~

27
ples of red and partial red varieties available for
shipment, and shipped in interstate commerce. That
for Eaearee vear 1958-1959 there were approximate-
ly 2,506,000 boxes of C Grade. apples of red and par-
sal red varieties:available for asap That as of
. May 23, 1959, all of said 19581959 C Grade apples
Were shipped i in inferstate commerce ¢ except approxi-
mately 264,708 boxes which remain on‘hand for ship-
ment and will be shipped in due course of business
in interstate commerce. The price of said C Grade
red and partial red varieties of apples in 1957-1958 .
and 1958-1959 was generally $2.00, or more, per box.
i . | VI. , .

The weather conditions are largely responsible for
the production of apples of C Grade of red and par-
tial red varieties and they are not primarily a result
of inferior farming and growing practices. That the
basic difference of the € Grade apple in the red and
partial.red varieties is less color than is found.in the
“Extra Fancy” and “Fancy” grades. Apples mature
earlier in the season generally at lower elevations
and in the more southerly parts of the State and
have less opportunity to color and in-these areas

substantially larger quantities of, € Grade. apples of
red and partial red varieties are produced than in
‘avees of higher elevation and later maturity.”
VIL.

That a substantial quantity of red and partial red
varieties of apples raised by Plaintiffs arc classitied
as Washington C Grade, under the law: prior to the
‘enactment of Cc hapter 230, Session Laws 1959, State

28 ia

of Washington, the specifications for which as here-
~ tofore established by the Direcvor of Agr leulture ar
among other-things:

“Apples of one variety which are mature,
hand-picked, clean, not badly misshapen, sound
and free from serious damage caused by hail or
punctures,”

That € Grade apples, ineluding red and partial red. -

Varicties are wholesome and healthful, that they
store and ship as well as Extra Faney or’ Faney
Grades, and that they are good to eat. cook and use
for human consumption. That the shipping and mar-
keting of C Grade apples of red and partial red va-
rieties in the manner heretofore allowed is in no way
detrimental to the public safety, health, morals, «
convenience, nox does.it constitute a fraud upon ne
public. : oh ee

: VIII.

That pursuant to R.C.W. 15.10.010, the Diverter:
of Agriculture of the State ef Washington has here-
tofere’ promulgated certain standards for apples
which are presently in effect and which include the-
standards for C Grade apples of the red and partial
ved varieties. That.a copy of said standards for ap-
‘ples is attached hereto, marked Exhibit “A” and in-
corporated herein by reference as though fully set
forth.

IX.

That. the Legislature of the State of Washington

enacted Chapter 230 of the Laws of 1959 entitled:

“AN AcT Relating to standards of grades and
packs of agricultural commodities; amending

IQ |

section 1, chapter 222, Laws of 193 9 and RCW
15.16.080; and adding a new section to chapter
in eh er

That said Chapter’ 230, Laws of 1959, was ap-
proved by the Gorerner of the State of Washington
on March 23, 1959; that said_act of the Legislature,
among other things, provided that :

“Section 1, Section 1, chapter 222. Laws of
1939, and RCW 15.16.080 are each amended to
read as follows:

The director shail adopt and promulgate rules
and regulations natelaking the following
grades of apples: For green and yellow vavi-
ctics: (1) extra faney, (2) faney, (3) C grade,
(4) culls, and (5) infected culls. For red and
partial red varieties: (1) extra feney, (2)
fancy, (8) culls, and (4) infected culls.

No person shall, pack, sell, or ship apples un-
less the same comply with the rules, regulations
and grades adopted pursuant. to RCW 15.16.-
O10, .

Section 2. There is added to chapter 15.16
RCW a new section to-read as follows:

The director uw hen establishing standards of
color requirements for red vevrigtics and partial
red varicties of apples shall establish color
standards for such varieties uw hie have not less
than the following: —

1. Arkansas Black - Fifteen percent
2. Spitzcnburg (Esopus) Fifteen percent
, 3. Winesap Tiventy percout
1. King David Fifteen pe. cont
». Delicious Trventy percort
6. NSfaymen Winesap Ten percent
Te Vanderpool Ton percent
s. Black Tieig : Te ey il
Q) Jovathan - Ton porcent

Py. 2

30
10. Melntosh ott Ten percent
_ 11. Rome Ten percent
12. Red Sport Varicties Tiventy percent!

Whenever red sport varictics are marked -as
such, they shall méet the color requirements or
red sport varicties.”

That color requirements set forth in Section 2 above
alleged apply to Fancy Grade. That the result of said
Chapier 230 in eliminating C Grade apples of red,
and partial red varieties and by decreasing the éolor
requirement for Fancy Grade results in at least
* 662:,', -of the former C Grade apples being classi-
ey fied as culls.. That such cull classification allows rex
Sen Re and marketing only in marked bushel
baskets in conformity with’ R.C.W. 15.16.160. That
said elimination of C Grade by the classification
thereof as culls decreased their market value in that
they can only be sold to processors, As culls or in ac-”
cordance with R.C.W. 15.16.160, the market price |
of which, in ‘either case, av erages 75‘~

. :

>

~
.
¢

12 ;

Infested Culls: Apples which are not graded in conformity with
the foregoing grades and ‘which contain 5% or more infestation from
codling moth, San Jose scale or other horticultural pests, shall be
designated as “Infested Culls.” :

Standard Box Packs.

A standard box in this state shall be eighteen inches long, eleven
and one-half inches wide, and ten and-one-half inches deep, inside
measure. When boxes are marked with a size count, all apples shal!
be arranged according to the approved method and shall be fairly
tightly packed ‘at the time of packing, but shall not. show excessive
or unnecessary bruising caused by poor sizing, poor. packing or an
over-filled package. Each apple wrapped shall be well wrapped.

Note: Standard box packs of Golden Delicious shall be well filled or fairly
well filled at the time o packing.

Tray. Packs. 2 .

‘A standard tray pack container carries four;‘five, or six -molded
pulp trays and is packed to and marked with one of the same size:
counts of the same size apples as are packed in the standard box. Al!
apples packed in tray pack containers shall be as uniformly sized as
those packed in the standard box ‘and shall be arranged according to
the approved method for the tray type of pack. Each container shall
be well filled or fairly well filled. To be fairly well filled a container
must have not less than forty (40) pounds net of apples. .

Tolerances Which Apply at Time of Packing.

In order to allow for variations incident to proper grading and
handling, not ‘more than a total of 10 percent of the apples in any
container may be below the requirements of the grade, provided that
not more than 5 percent shall be seriously damaged by insects and
not more than 1/10 of this amount, or 1 percent shall be allowed for
decay and/or internal breakdown. Slight imperfections which are
hot discernable in good commercial sorting practice shall not be con-
sjdered defects of grades. ‘>,

In addition to the above, for standard box packs, in boxes or car-
tons marked with a size. count, a tolerance of 10 percent for each of
the defects of pack, such as wrapping, and tightness shall be per-
mitted in any lot and shall be computed by counting, weighing or
measuring the samples. . :

In. addition to the above, a tolerance og 5 percent by count shall
be allowed for apples below the specified minimum diameter and 10
percent for apples above any specified maximum diameter. .

In addition to the above, a tolerance of 10 per cent for each of the
defects of pack, such as wrapping, and tightness shall be- permitted in
any lot and shall be computed by counting, weighing or measuring
the samples. - ;

When applying the foregoing tolerances to the combination grades,
no part of any tolerance shal] be used to reduce the percentage af
apples of the higher grade required in the combination. A

meat

13

The tolerances specified for the various grades are placed on a
container basis. However, any Jot of apples shall be considered as
meeting the requirements of a specified. grade if the entire lot av-
erages within the tolerances specified, provided that no sample from
the containers in any lot is found to exceed the following amounts:

For a specified tolerance of 10 per cent, not more than one and
one-half times thé tolerance shall be allowed in any one package.

For specified tolerances of 5 per cent, or less, not more than
double the tolerance shall be allowed in any one package. . ‘

Tolerances Which Apply After Apples Have Been in Storage or in
Transit. i
After fruit has been placed in storage or in transit, scald, break-
down, decay, bitter pit, or physical injury affecting keeping quality
which may have developed or may only have become evident after

' apples are packed are defined as applying to condition rather than

to grade. ¢

' Marking Closed Containers.

o

The containers shall bear the correct name of the variety, or

. “Variety Unknown,” the name of the srewer, packer, or shipper, and

his address, the grade and the number of apples or the net contents,
either-in terms of dry measure or weight. Any of these marks may be
printed on the label but in case they are not, they must be stamped
on the end of the container. On boxes, the grower's packer’s or ship-
per’s name and address, if not included on the label, shall be placed
either in line with the grade marks: above the label or on the opposite
end of the box. os

When containers are marked as to number, each container shall
contain the correct number of apples designated by the markings.

Marking Open Containers. ;

Open containers shall be marked on the end with the name and
address of the grower, packer or shipper, the grade, and variety.

Other Brands and Grades. ,
Any person, firm, or organization wishing to pack apples under

any other grade or brand than according to the foregoing rules shall
file a certified copy of the description of such grade or brand with.
the Director of Agriculture the year in which the apples so to be
packed are grown. If such grade or brand is approved by the Director
of Agriculture, apples may be packed under such grade or brand,
instead of the official state grading, rules and all boxes of apples so
packed shall be marked with that grade or brand: Provided, That
Private grades.or brands for apples may only be registered and ap-
Sieg when they meet the specifications required of Fancy Grade or
a

14

WASHINGTON STATE CONDITIONS STANDARDS
(Not Mandatory)

As applied to condition factors:

(1) Not more than an avefage of 5% of the apples in any lot, with
nof more than 10% in any one sample, shall be further advanced in
maturity (firmness) than firm ripe. :

(2) Not more than a vvtal of 5% of the apples in any lot, with not
more than 10% in any one ‘sample, shall be damage by bitter pit,
Jonathan spot, common scald, visible watércore, freezing or. other |
such condition factors, excluding delayed sunburn.

(3) Not more than any average of 2% each in any lot, with not
to exceed 8% in any safnple, shall be allowed for apples affected by
decay, visible breakdown, or by soft scald; except that after March |
not more than an average of 3% each in any lot with not excéed
10% in any sample shall be allowed for apples affected’ by decay,
visible breakdown or by soft scald. Ce

Remarks: On request, official certificates will! bear the statement “Lot
Meets Washington State Condition Standards,” provided the apples meet the
standard requiremenis at the time of inspection Re ie

The following U. S. grades ONLY may be used for apples: U S.
Extra Fancy, U. S. Fancy and U. S. No. 1 as promulgated in the U.§
Standards for Apples and adopted effective July 23, 1951.

U. 8. Extra Fancy consists of apples of one variety which are ma-
ture (1) but not overripe (2), carefully hand-picked (3), clean (+4),
well formed (5), free from decay, internal browning, internal break-
down, scald, scab, bitter pit, Jonathan spot, freezing injury, broken
skins and bruises (except those that are slight and incident to proper

*handling and packing), and visible water core. The apples shall also
be free from injury (6) caused by russeting (6a), sunburn or spray
burn (6b), limb rubs (6c), hail (6d), drought spots (6d), scars (6d).
stein or calyx cracks (6e), ogher diseases (6f), insects (6g), or me-
chanical or other means (6). Each apple of this grade shall have the
amount of color specified hereinafter for the variety. (See Color Re-
quirements, Tolerances and Condition after Storage or Transit.)

U. S, Fancy consists gf apples of one variety which are mature (1)
but not everripe (2), carefully hand-picked (3), clean (4), fairly well
forméd (7), free. frorn decay, internal browning, internal breakdown.
Witter pit, Jonathan spot, scald, freezing injury, broken skins and
bruises («xcept those incident to proper handling and packing), and
visible water core. The apples shall also be free- from damage (8)
cd@used by russeting (8a), sunburn or s ray burn (8b), limb rubs (8c
hail (8d), drought spots (8d), scars (8d), stem or calyx cracks (8e),
other diseases (8f), insects (8g), or mechanical or other means. Each
apple of this grade shall have the amount of color specified herein-
after for the variety. (See Color Requirements, Tolerances and (on-
dition after Storage or Transit.)) *

U?S. No. 1. The requirements for this grade are the same as US
Fancy except for color and russeting. In this grade less color is re-
quired for all varieties except yellow and green varieties for whic?

15 .

he requirements for both grades are the same. Apples of this grace
hall be free from excessive damage caused by russeting which means
hat they shall meet the russeting requirements for U. S. Fancy as
iefinéd under the definitions of “damage by russeting™ (8a), Pro-
ided,-That, the aggregate area of an apple which may be covered
yy smooth net-like russeting shall not exceed 25 per cent: And fur-
her provided, That, the aggregate arca of an apple which may. be
overed by smooth sol.d russeting shall not exceed 10 per cent. (See

Color Requirements. In addition to the requirements specified
or the above grades, apples of these grades shall have the percentage
f color specified far the variety in Table I. For the solid red Varieties
he percentage stated refers to the area of the surface which must.be
overed with a good shade of solid red charac istic of the varicty:
rovided. That, an apple having color of a lig shade of sojed red
t striped red than that considered as a good shade of red chara¢ter-
tic of the variety may be admitted to a grade,”provided it has suf-
cient additional area covered so that the apple has as good an ap-
earance as one with the minimum percentage of good red character-
tic of the variety required for the grade. For the striped red varie-
¢s the percentage stated refers to the area of the surface in which
ie stripes of a good shade of red characteristic of the variety shall
redominate over stripes of lighter red, green, or yellow. However.
n apple having color of a lighter shade than that considered as a
bod shade of red characteristic of thg variety may be admitted to a
rade: Provided, That, it has sufficient additional area covered so
a apple has as good an appearance as ot.e with the minimum
ercentage of stripes of a good red characteristic of the Variety re-
uired for the grade. Faded brown stripes shall not be considered as
lor except in the case of the Gray Baldwin variety.

-
»

16

Table I—Color Requirements for Specified U. 8. Srades of ‘ian
by Varieties

U.S. Extre U.S US
Fancy - Fancy No 1

Variety percent percent percent
Soiid ‘Red:
Black Ben ae ; 75 50 25
Gano... : he 75 50 — 25
See pea ea 75 50 25
Other similar varieties”. ty age ee 75 50 . 2
Red Sport varieties®. . 75 50 25
Striped or partially red:

i a a ; : 66 33 25
Jonathan REISER Re tick wad = 66 33 25
ES eee eee ti 66 33 25
Other similar varieties® Padowants 66 33 25
I Ca ee. Guha eis cs De ae ee | 25 + 15
Ben Davis. __........ Reg See ae ee 50 25 ° 15°
TE ee ey 15 25 15
Mammoth Black Twig... .. 50 25 15
Northern Spy __..... poet Ate vare 50 25 1S
Rome Beauty ar Sega as 50 25 15
I Gk ce ; 50 25 15
Re Me ee %,, 3 50 25 15
is ce eacs sean os 50, 25 15
es indiana Pei ae eNgegia 50 25 . 15
Willow Twig Pron eeu Ls Poe 50 25 15
York Imperia! ................ % 50 25 15
Other similar varieties®........ lean 50 25 15
Hubbardston ...—s_d.............. ; 50 15 10
se a ee i nok es 50 15. 10
Other similar varieties ‘ane are ae pag 50 15 10
Red June . BOR sk wis es ENG 50 15
SESE ap el te en ‘50 15 :
Other similar varieties... . 50 15 $
Gravenstein................. — 25 «910 »)

17

‘Table 1—Continued

Varicty

Red cheeked or blushed: :
Maiden Blush .. he ree
Twenty Ounce .. aA EPA aer Ere
Winter Banana . ae
Other similar varieties...

ees. GOREN ww ike ee thea
Yellow varieties... .. Y More

U.S. Extra
Fancy

U.S
Fancy

Us.

No.1

percent percent percent

@
®
€
©
©

¢

@
®

-@°

(») .
®
®
®
@
©

* When Red Sport varieties are specified as such they shall meet the

color requirements specied for Red Sport varicties..

! Haralson, Kendal!, Macoun; Melba, Snow (Fameuse)..
* Bonum, Early McIntosh, Limbertwig, Milton, Nero, Paragon.

© Tinge of color.

£ Duchess Red Astrachan, Smokehouse.’ Summer Rambo.

g Blush cheek.
’ None.

’ © Characteristic ground color. ”

’

*75 percent characteristic color. Note: “Characteristic color’, when
the white around the lenticels predominates over the green color,

creating a mottling effect on the ‘surface of th
considered as the minimum characteristic color.

_ TOLERANCES

e apple. it shall be

In order to allow for variations incident to proper grading and
_ handling, not more than a total of 10 percent of the apples in any lot
may fail to meet the requirements of the grade: Provided, That, not
more than -half of this amount, or 5 percent, shall be allowed for
apples which are seriously damaged by insects and including not

down or both.

. mere than 1 percent for apples affected by deéfay or internal break-

When applying -the: foregoing tolerances to. Combination U. S.
Extra Fancy and U. S. Fancy grade, no part of any tolerance shall be
alowed to reduce, for the lot as a. whole, the 25 percent of apples of
the higher grade required in the combination, but individual contain-
ers shall have not less than 15 percent of the higher grade.

- When applying the foregoing tolerances to Combination VU. S.
Fancy and U. S. No. 1 grade, and to Combination U. S. No. 1 and U. S.
Utility grade, no part of.any tolerance shall be allowed to reduce, for
the lot as a whole, ‘the 50 percent of apples of the higher grade re-

quired in the combination, but individual containers shall have not

less than 40 percent of the higher grade.

. 18 :

APPLICATION OF TOLERANCES TO INDIVIDUAL
, PACKAGES

The contents of individual packages in the lot based on samp'e
inspection, are subject to the following limitations, provided the
we for the entire lot are within the tolerances specified for the
grade: ; ’

For packages which contain more than 10 pounds, and a tolerance
of 10 percent or more is provided (as in the case of size, where
tolerance of 15 percent is provided) individual packages in any lo
shall have not more than one arid one-half times the tolerance spec:-
fied. For packages which contain more than 10 pounds and a tolerance
of less than 10 percent is provided, individual packages in any lot ,
shall have not more than double the tolerance specified, ‘except. that
at least one apple which is seriously damaged by insects or affected
by decay or internal breakdown may be permitted in any package

For packages which contain 10 pounds or less, individual packages
in any lot are not restricted as to the pereentage of defects: Pro-
vided, That, not more than one apple which is seriously damaged by
insects or affected by decay or internal breakdown may be permitted
in“any package. ;

BASIS OF CALCULATING PERCENTAGES

When the numerical count is marked on the container, percentages
shall be calculated on the basis of count. '

When the minimum diameter or minimum and maxjmum diam-
etets are marked on the container, percentages shall be calculated on
the basis of weight. oe ; i

When the apples are in bulk: percentages shall be calculated on
the basis of weight. i

CONDITION AFTER STORACE OR TRANSIT

Decay, scald, or any other deterioration which may have developed
on apples after they have been in storage or transit shall be consid-
ered as affecting condition and not the grade.

SIZE REQUIREMENTS

The numerical count or the minimum diameter of the apples
packed in a closed container ‘shall be indicated on the container.

Wheh the numerical count is marked on the container the min-
imum size of the largest apple shall be not more than one-fourth inch
larger fhan the minimum size of the smallest apple. Sear:

When the numerical count is not shown the minimum diameter
shall be plainly stamped, stenciled, or otherwise marked on the con-
tainer in terms of whole inches, whole and half inches, whole and
quarter inches, or whole and eighth inches, as 24% inches minimum.
244 inches minimum, or 2% inches.minimum, in accordance wii) the
facts. Jt is suggestedghat both minimum and maximum diameters be
marked on the container, as 2% to 2% inches, or 2% to 2% inches, as

oan an “~ ‘
19

such marking is especially desirable for apples marketed in the export
trade. ;

The measurement for minimum size shall be the largest diameter
of the apple taken as right angles to a line from the stem end to the
blossom end. The measurement for maximum size shall be the
smallest dimension of the apple determined by passing the apple
through a round opening.

In order to allow for variations incident to proper sizing, not
more than 5 percent of the apples in any lot may not meet the size
requirements: Provided, That, when the maximum and minimum
sizes are both stated, an additional 10 percent tolerance sha!l be al-
lowed for-apples which are larger than the maximum size stated.

PACKING REQUIREMENTS

Each package shall be packed so that thd\applés'on the shown
facegshall be reasonably ‘representative in size, color and quality of
the contents of the package. et

* Boxes. Apples packed in the standard northwestern apple boxes
shall be arranged in the containers according to the approved and
recognized methods with the stems pointing toward the ends of the
boxes, except wifen jumbled. ‘All packages shall be well filled but
not to the extent as to cause excessive or unnecessary bruising to the
apples because of overfilled packages. Apples packed in the standard
northwestern apple boxes shall be tightly packed with sufficient bulge
to prevent any appreciable movement of the apples within the con-
tainers when lidded. Each wrapped apple,shall be completely en-
closed by its individual wrapper.

Apples packed in other type boxes, such as nailed wooden boxes,
wire-bound boxes, and fibreboard boxes, may be place packed, jum-
ble packed faced, or jumble packed, and all packs shall be well filled.

Apples packed in boxes equipped - with “tell compartments or
molded trays shall be of the proper size for the cells or the molds vin
which they are packed. 9

Apples packed in consumer unit cartons and packed into shipping
containers shall completely fill the shipping container.

Baskets. Apples packed in U. S. standard bushel baskets, one-half
bushel baskets and five-eighths bushel baskets may be ring faced and
shall be tightly packed with sufficient bulge to prevent any appre-
siable movement of the apples within the containers when lidded.

Barrels. Apples packed in barrels shall be tightly packed.

In order’ to allow for variations incident to proper packing, not
more than 5 percent of the containers in any lot may not meet these
requirements.

Marking Requirements.

Containers of apples packed to the U. S. grades shafl meet all of
the container marking requirements as set forth on page 13.

i. s -

20

STANDARDS FOR EXPORT

As applied to conditiun factors:

1. The apples in any lot shall be generally tightly packed when
1 barrels or baskets, and generally fairly tightly or tightly packed
when in boxes...

' 2. Not more than 5 percent, of the apples in any lot shall be fur-
ther advanced in, maturity than firm ripe. ad
3. Not more than 5 percent of the apples in any lot shall be dam-
aged by storage scab.

. Not than a total of 5 percent of the apples in any lot
shall be dama ed by bitter pit, Jonathan spot, scald, internal break-
down, water core, freezing, decay, or other such condition factors:
Provided, That, : : : .

(a) Not-more than 2 percent shall be ‘allowed for apples af-
fected by decay; |
(b) Not more than 2 percent shall be allowed for damage by(
internal breakdown; Cc
(c) Not more than 2 percent of slight scald shall be permitted
for applels properly packed in oiled Paper or which have
been especially treated with oil to prevent scald; other-
wise, the my must be free from scald. eat
Any lot of apples sMall be considered as meeing the standards for
export if the entire lot averages within the requirements specified:
Provided, That, no sample from the containers in any lot-is found to
exceed double the .percentages specified, except that for packages
which contain 10 pounds or less, individual packages in any lot afe
not restricted as to the percentage defects if the entire lot averages
within the tolerances specified.

_ DEFINiiIONS

As used in these standards: :

(1) “Mature” means that the apples have reached the stage of
growth which wil] insure the proper completion of the ripening
process. Before a mature apples becomes overripe it will show vary-
ing degrees of firmness, depending upon the stage of the ripening
process. The following terms are used for describing these different
‘stages of firmness of apples:

(a) “Hard” means apples with a tenacious flesh and starchy flavor.
Apples at this stage are suitable for storage and long-distance

, Shipment. ; .
(b) “Firm” means apples with a tenacious flesh but which are
ming crisp with a slightly starchy flavor, except the
Delicious variety. Apples at this stage are also suitable for
storage and long-distance shipment.

(c) “Firm ripe” means apples with crisp flesh except that the
flesh of the apples of the Gano, Ben Davis, and Rome Beauty
varieties may be slightly mealy. Apples at this stage may be .
shipped iong distances but shouid be moved into consumption
within a-short period of time. ;

21 -

(d) “Ripe” means apples with mealy flesh and soon to become.
} soft for the variety. Apples at this stage should be moved
immediately into consumption. ‘

(2) “Overripe”. means apples which are dead ripe, with flesh

f very mealy or soft, and past commercial utility. ° "

(3) “Carefully hand-picked” means that the apples do not show
_ evidence of rough handling or of having been on the ground.

_ °_ (4) “Clean” means that the apples are free from excessive dirt,
, dust, spray residue and other foreign material.

(5) “Well formed” means that the apple has the normal shape
characteristic of the variety, except that the shape may be slightiy
irregular, provided, it does not detract from the general appearance
- of the apple. , 2
(6) “Injury” means any defect which more than slightly affects

the appearance, or the edible or shipping quality of the apples.

(a) Russeting in the stem cavity or Calyx basin which cannot be
seen when the apple is placed stem end or calyx end down)

on a-filat surface, shall not be considered in determining
whether or not on apple is injured by russeting, except that: .
rough or bark-like russeting in the stem cavity or calyx
basin shall be considered as injury. when the appearance of
the apple is materially affected. The ‘following types and
y ‘amounts of russeting outside_of the stem cavity -or calyx
basin, shall be considered as injury: —_—

(i) Smooth. net-like russeting, when’ an aggregate are of
more than 5 percent of the surface is covered, and the
color of the russeting shows no very pronounced con-
trats with the background color of the apple, or lesser
amounts of more conspicuous net-like russeting when the
appearance is affected to a greater extent than the above
amount permitted. ! ;

(ii) Smooth, solid russeting’ which covers an aggregate area
of more: than one-half inch in diameter, and the pattern
and color of the russeting shows no very pronounced con-
trast with the background color of the apple, or lesser
amounts of more conspicuous solid russeting when the
appearance is effected to.a greater extent than the above

+ amount permitted.® :

(iii) SlighYy rough russeting which covers an aggregate area
of more than one-fourth inch in diameter.®

(iv) Rough russeting, unless it is well within the stem cavity
or calyx basin and ‘is not.readily apparent. —

Any one of the following defects, or any combination thereof, the
Seriousness of which exceeds the maximum allowed for any one de-
fect, shall be considered ,as injury: so

(b) Sunburn or spray burn, when the discolored area does:not

blend into the normal color of the fruit. .

(c) Dark brown or black limb rubs which affect a-total area of

more than one-eighth inch in diameter, except that light

@® The area refers to that of a circle of the specified diameter

a

-(e)

(f)

(8)

(7)

. : ey

brown limb rubs of a russet character shall be consideres

under the definition of injury by russeting (6a).©

Hail marks, drought spots or other similar depressions or

sears where there is appreciable discdloration other thar

russeting, or when the indentations are not superticial, or

when an individual indentation exceeds one-righth inch jr

diameter, or the total affected area exceeds one-fourth inc*

in diameter.© : ae ,

Stem or calyx cracks which are not well healed, or. wei!

healed stem.or calyx craeks which exceed a length of one-

eighth inch. | ae

Diseases: ‘ . be

(i) Cedar rust infection which affects a total area of mon
than one-eighth inch-in diameter.®

(iiy Sooty blotch or fly speck which is thinly, scattered over
more than 5 percent of the surface, or dark, heavily con-
centrated spots which affect an area of more than one-
fourth inch in diameter.©®

(iii) Red skin spots which are thinly scattered over more thar.
one-tenth of the surface, or dark, heavily concentrate:
spots which affect an area of more than one-fourtii inch
in diamettr.® ,

Insects: ‘

(i) Any healed sting or healed stings which affect a tote’
area of more than one-eighth inch in diameter including
any encircling discolored rings.©

(ii) Worm holes.

“Fairly well formed” means that the apple may be Slight!

abnormal in shape but not to an extent which detracts material)
from its appearance. :

(8)

“Damage” means any defect which materially affects the.ap-

pearance, or the edible or shipping quality of the @pples.

(a).

@ The area refers to that of a,circle of the specified diameter. ;

RuSseting in the stem cavity or calyx basin which cannot be
seen when the apple is placed stem end or calyx end on 4
flat surface shall not be considered in detetmining whether
or not an apple is damaged by russeting, except that exces-
sively rough or bark-like fusseting in the stem cavit¥ or
calyx basin shall be considered as damage when the appear-
ance of the apple is materially affected. The following type:
and amounts of. russeting outside’ Of, the stem cavity or calyx
basin, shall be considered as damage.
(i) Russeting which is.excessf[vely rough on Roxburg Russe:
and other similar varieties. ‘ , ;
(ii) ‘Smooth net-like russeting, when an aggregate area o!
‘more than 15 percent of the surface is covered, and the
color of the russeting shows no very pronounced con-
trast with the background color of the apple, or lesser
amounts of more conspicuous net-like russeting wher

¢

. : - 23

the. appéarance is affected to a greater extent than the
above amount permitted. ‘

(iii) Smooth solid russeting, when an aggregate area of more
than 5 percent-of the surface is covered, and the pattern
‘and color of the riisseting shows. no very pronounced
contrast with the background color of the apple, or lesser
amounts of more conspjcuous solid russeting when the ap-
pearance is affected t
amount permitted.

(iv) Slightly rough russeting which covers an aggregate area
of more than one-half inch in diameter.® e:

(v). Rough russeting which exceeds one-fourth inch in diam-
eter, unless.it is well within the stem cavity or calyx
basin and is not readily apparent.® ;

Any one of the following defects, or any combination thereof, the
seriousness of which exceeds the maximum allowed for any one de-
fect, shall be considered as damage: iy

(b) Sunburn or spray burn which has caused blistering or crack-

ing of the skin, or when the discolored area does not blend
into the normal color of the fruit unless the injury can be

_ _ ¢lassed.as russeting.

(c) Limb rubs which affect a total area of more than one-half

’ inch in diameter, except that light brown limb rubs of a rus-
set character shall be considered under the definition of dam-
age by russeting (8a).® y

(d) Hail marks, drought spots, or other similar depressions or
scars which are not superficial, or when such injury affects
a total area of more than one-half inch in diameter. .

(e) Stem or calyx cracks which are not well healed, or ‘well
healed stem or calyx cracks which exceed an aggregate length
of one-fourth inch. . ‘

(f) Diseases:

(i) Scab spots which affect a total aren of more than one-
fourth inch in diameter ® — :

(ii) Cedar rust infe¢tion which affects a total area of more
than one-fourth inch in diameter.®
(iii) Sooty blotch or fly speck which is thinly scattered over

. more than one-tenth of the surface, or dark, heavily con-
centrated spots which affect an area of more than a _one-

half inch in diameter®
(iv) Red skin spots which dre thinly scattered over mortf
than one-tenth of the surface, or dark, heavily concen-

trated spots which affect an area of more than one-half
inch in ,diameter.®
(g) Insects:

(i) Any healed sting or healed stings which affect a total area
of more than three-sixteenths inch in diameter including
any encircling discolored rings.®

(ii) Worm_holes.

' The area refers to that of a circle of the specified diameter.

a greater extent than the above

.

24

~ SPOTS SHOWING DIAMETERS IN FRACTIONS OF AN INCH
ARE ILLUSTRATED BELOW

One-eighth inch.

‘ Three-sixteenths inch.

One-fourth inch.
Three-eighths inch.

One-half inch.

Three-fourths inch.

June 22. 1956.

35

IN THE
SUP ERIOR COURT OF THE STATE OF VW ‘ASHINGTON
IN AND FOR a COUNTY

CEcIL C. CLARK and CATHERINE
CLARK, husband and wife,

Plaintiffs, | | No. 43477

JOE DWYER, Diverter of Agriculture DEMURRE R

of the State of W ashington, .

Defendant. | aa

ie NOW the defendant. Joe Dwyer, Direc-
tor of Agriculture of the State of W ashington,
ee his attorneys, the Attorney General and
Ernest M. Furnia, Assistant; and demurs to the
amended complaint of the plaintiffs, Cecil C. Clark,
et ux, on the following grounds:

i
' That the court has no jurisdiction of the defend-
ant or the subject matter of the action.
. - aE. ae

That the plaintiff has no legal capacity te sue.

id ITI. _

That there. is‘another action pending between :the
same parties for the same cause.

| IV.

That there is a defect of parties plaintiff or des
fendant.

V.
That several causes of action have been improper-

lv united.
VI.

That the complaint does not state facts sufficient
to'constitute a cause of action.

36

; VIl.
That the action has not been comnienced within
- the time limited by law.

Dated this 11th day of June, 1959.

JOHN J. O’CONNELL
Attorney General

aa oon $/Ernest M. Furnia
ERNEST M. FURNIA =e.
Assistant Attorney General

. IN THE
SUPERIOR COURT OF THE.STATE OF WASHINGTON
IN AND FOR YAKIMA COUNTY

CeciL C. CLARK. and CATHERINE

CLARK,. husband and wife, ~ No. 43477
Plaintifis, | ORDER
Vs. OVER-
|
|

JOR DWYER, Director of Agriculture RULING
. of the vad of Washington, DEMURRER
Defendant. ‘
THIS MATTER came on duly and regularly for
- hearing before the Honorable Lloyd L, Wiehl, Judge
of the abové-entitled Court, on the Demurrer of De-
fe ndant to Plaintiffs’ Amended Complaint, the Plain-
tiffs appearing by their attorneys, Halverson, Apple- _
‘gate & McDonald and Donald H. Brazier, Jr., and
the Defendant appearing by John J. O’Corfhell, At-
torney General, and Ernest M. Furnia, Assistant
Attorney General. and the Court having heard and
considered the arguments of counsel and Being fully
ddvised in the premises,
Now, THEREFORE; IT IS HEREBY, ORDERED that the
~ Demurrer of the Defendant to Plaintiffs’ “Amended
Complaint be and the same is hereby overruled.

if

37
DONE IN OPEN COURT this 26th day of June. 1959.
x/ Lloyd L. Wiehl
‘Judge -
Prese or by:
s/C. W. Halverson
- Of Halverson, Applegate & MeDonald aa ce
and Donald H. Brazier, Jr:,
Attorneys for Plaintiffs. |
OKAY AS TO FORM: orate .
-s/Ervest M. Furnia “
Assistant Attorney General

: IN THE
. SUPERIOR COURT OF THE STATE OF W ASHING TON
IN AND FOR YAKIMA COUNTY

CecIL C. CLARK and CATHERINE}
CLARK, husband and wife, | |
ue Plaintitts, | No: 43477
Jor Dyes, Director ot Agriculture | JUDGMENT.
of the State of Washington, |
i ay, fe wdant. | ae

~ THIS CAUSE having come on for hearing on June -
19, 1959, on the Defendant's demurrer to the Plain-
tiffs’ amended complaint and the Court having heard: |
the argument of counsel and having on June 26,
1959, entered an order overruling said Defendant's
demurrer to Plaintiffs’ amended complaint and the’
Defendant having been given an opportunity to plead
further and said Defendant having declined to se
plead and the Court being fully advised in the prem-
ises, “i , ;

NoW, THEREFORE, IT "IS HEREBY ORDERED, AD-
JEGGED AND DECREED that Chapter 230, Session Laws

P1950, State of Washington, be and the same is_
he reby declared unconstitutional an® void! and

Z

| 38

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Defendant be and he is hereby permanently
enjoined from enforcing and carrying out the pro-
visions of said Chapter 230, Session Laws of 1959,
and

IT IS FURTHER ORDERED that the Plaintiffs be and.
they are hereby awarded judgment against the De-
fendant for .their costs and disbursements herein
expended and incurred. -

DONE IN OPEN COURT this 27th day of July, 1959.
lentes - wd iehl

bys reed. July 21, 1959
rnest M. Furnia

ee Resiahant Attorney General
Presented by:

8/C: W. Halverson

Of Halverson, Applegate & McDonald

Attorneys for Plaintiff.

IN THE
S. ’ERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR YAKIMA COUNTY

‘CEcIL C. CLARK and CATHERINE |)
CLARK, husband and wife, -
aie. Plaintiffs, No. 43477
. VS. NOTICE OF
JoE DwYER, Director of Agriculture |} APPEAL
of the State of Washington, ,
‘Defendant. |

To Cecil C. Clark and Catherine Clark, hus ind and
wjfe, and to Halverson, Applegate & N cDonald,
their attorneys:

Y6u and each of you are hereby notified that the
defendant, Joe Dwyer, Director of Agriculture of the
State of Washington, feeling himself aggrieved, does

39

hereby appeal to the Supreme Court of the State of
Washington from each and every part of that cer-
tain judgment made and entered herein by the above-
entitled court on July 27, 1959, whereby and wherein
Chapter 230, Laws of 1959 was declared unconsti-
tutional and void, defendant was permanently en-
joined from enforcing and carrying out the provi-
sions of Chapter 230, Laws of 1959, and plaintiffs
were awarded costs and disbursements.

Dated at Olympia, Washington, this 29th day of
July, 1959,

JOHN J, O'CONNELL
Attorney General
s/Ernest M. Purnia
Ernest M. Furnia
Assistant Attorney General
Temple of Justice

_- Olympia, Washington

c Counsel for Defendant

IN THE SUPREME COURT OF THE
STATE OF WASHINGTON |

May Session A. D. 1960
BE IT REMEMBERED, That at a regular session of
the Supreme Court of the State of Washington, be-
gun and holdén at Olympia, on the second Monday of
May, A. D. 1960, it ‘being the ninth day of said
month, among other, the following was had and done,

to wit:
Friday, August 19, 1960

40
CEcIL C. CLARK and CATHERINE

CLARK, husband ~ ih No, 35260
7 Vs. .
Jor Dwyer, as Director of the f Counts

Department of Agriculture of sient

the State of Washington,
. - Appellant. |

This cause having been heretofore submitted to
the Court, upon the transcript of the record. of the
Superior Court of. Yakima County, and upon the
argument of counsel, and the court having filly con-
sidered the same, and being fully advised in the
premises, it is now, on this 19th day of August, A. D.
1960, on motion of John J. O’Connell, Esquire, of-
counsel for appellant, considered, adjudged and de- .-
creed, that the demurrer of the said Superior Court
should have been sustained and the action dismissed; -
_and that the said Joe Dwyer, as Director of the De-
partment of Agriculture of the State of Washington,
have and recover of and from the said Cecil.C. Clark -
and Catherine Clark, husband and wife, the costs of
this action taxed and allowed at One hundred ninety-
two and no 100 ($192.00) . .. Dollars, and that said
execution issue therefor. And it is further ordered, .
that this cause be remitted to the said Superior Court
for further proceedings, in accordance herewith.
. 1, ROBERT HOLSTEIN, Clerk of the Supreme Court
of the State of Washington, do hereby certify that |
the foregoing: is a true copy of the Judgment and
Decree in said cause, as the same now remains ol
record in my office. . }

41

IN TESTIMONY WHEREOFP, I ‘have hereunto set my
hand.and affixed the seal of said Court at Olympia,
this 19th day of August, A. D. 1960.

e : s/Robert Holstein
. ROBERT HOLSTEIN,

Clerk of the Supreme Court,
State of Washington.

(Here follows en banc opinion of Supr eme Court
of the State of Washington, reprinted in full as Ap-
pendix “A.” ) °

<a
SUPERIOR COURT OF THE STATE OF. WASHINGTON
IN AND FOR YAKIMA COUNTY.

) : °

Cect, C. CLARK and CATIFERINE

CLARK, husband and wife, No. 43477
Plaintiffs, JUDGMENT
Vs." L * ‘ON
JOE Dwyer, Director of Aer iculture | QREMIT- .
of the State of Washington, TITUR:
Defendant.

THIS CAUSE coming on duly and regularly for
hearing, the parties hereto appearing by their re-
spective counsel of record herein, and it appearing
to the court that the defendant heretofore demurred
to plaintiffs’ amended complaint and that an order
Was entered overruling said defenciant’s demurrer
and the defendant hav ing declined to plead further,
judgment was entered in the above entitled case on
the 27th day of July, 1959 in favor of plaintiffs and
‘ against the defendant, and it further appearing that.
said judgment was duly appealed to the Supreme
Court of the State of Washington and after hearing
the Supreme ,Court reversed said judgment, all of
which more fully appears in the remittitur on file

——*

1960.

Assistant Attorney General

42 -
herein, and it further appearing that said plaintiffs!
have been given an opportunity to plead furthér and
said plaintiffs have declined to so plead and the court »
having considéred all of the records and files herein
and being fully advised in the premises,

NOW, THEREFORE, IT/ IS HEREBY ORDERED, -AD-

* JUDGED AND DECREED that the judgment heretofore

and on the 27th day of July, 1959, duly entered in
the above entitled court and cause be and the same is ~
hereby reversed and set aside, and ,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that plaintiffs’ complaint and plaintiffs’ amended
complaint be and they are hereby dismissed. with
prejudice, and

IT IS FURTHER ORDERED that the defendant be and
he is hereby entitled to recover judgment against the
plaintiffs for defendant’s costs to be taxed herein.

DONE IN OPEN CouRT this 11th day of October,

s/ Lloyd L. Wiehl
ate Fee: Judge
Presented by: 3
s/Alan A. McDonald
Of Halverson, Applegate & McDonald
and Walter E. Weeks, Jr.
Attorneys ‘for Plaintiffs
APPROVED:
s/Philip M. Parkes

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0705%3A2. Public record. Not legal advice.