State v. Robinson Co., 84 Wash. 246, 146 Pac. 628 (1915).

 246    Opinion Per MOUNT, J.           84 Wash.

      [No. 12320. Department One. March 1, 1915.]
     THE STATE OF WASHINGTON, Appellant, v. ROBINSON
                COMPANY, Respondent. «1»

                STATE v. ROBINSON CO.                247
 Mar. 1915          Opinion Per MOUNT, J.

ch. 201 of the Laws of 1909, p. 705 (Rem. & Bal. Code, SS 6011
et seq. [P. C. 163 SS 149 et seq.] ). The trial court sustained a
demurrer to the information, upon the ground that the act
was void as being in contravention of SS 12, art. 1 of the state
constitution, and upon other grounds. The state has
appealed from an order of dismissal.

Section 1 (Id., SS 6011) of the act above referred to is as
follows:

"The term 'concentrated commercial feeding stuffs' as used
in this act shall include linseed meals, cocoanut meals, gluten
feeds, gluten meals, germ feeds, dairy feeds, starch feeds,
sugar feeds, dried brewers' or distillers' grains, malt sprouts,
feeds made from ground cereals or by-products therefrom,
including wheat bran, wheat middlings, and wheat shorts,
slaughterhouse waste products when sold as feeds, mixed
feeds and mixed meals made from seeds or grains, and all
materials of similar nature used for food for domestic
animals, condimental feeds, stock feeds, and all patented
proprietary or trade stock and poultry feeds for which nutritive
value is claimed; but it shall not include hay or straw, whole
seeds, or unmixed meals made from the entire grains of wheat,
rye, barley, oats, corn or other cereals, nor wheat flours or
other flours."

Section 2 (Id., SS 6012) requires every manufacturer or
dealer before offering such feed for sale to file with the
director of the state agricultural experiment station, at Pullman,
Washington, a sworn certificate setting forth, among other
things, the ingredients of which the feed is composed and the
percentage of certain of its constituents.

Section 3 (Id., SS 6013) requires every person offering such
feed for sale to affix to every package a tag or label with
certain information printed thereon, and to affix a stamp
purchased from the director of the experiment station, showing
that the feed has been registered and the inspection tax paid.

Section 4 (Id., SS 6014) requires the director of the
experiment station to register the feed and to furnish stamps or
labels showing the registration, with the provision that stamps
must be bought in lots of $5 each for each variety of feed.

 248    STATE v. ROBINSON CO.
                Opinion Per MOUNT, J.           84 Wash.

Section 5 (Id., SS 6015) requires each manufacturer or
dealer to file an annual statement of the number of pounds
of each brand of feed sold or caused to be offered for sate in
the state for the preceding year.

Section 6 (Id., SS 6016) provides the fees to be paid and
the annual report of the director of the experiment station.

Section 7 (Id., SS 6017) prohibits the sale of non-labeled or
inferior grades of feed which has not been registered and
which does not contain the tag and an analysis of the feed,
and fixes a penalty for a sale in violation of the act.

Section 8 (Id., SS 6018) provides for samples to be taken
from all packages offered for sale.

Section 9 (Id., SS 6019) provides a penalty for interfering
with the director of the experiment station in making
inspections and obtaining samples of feed offered for sale.

Section 10 (Id., SS 6020) provides that the director of the
experiment station may prescribe and enforce such rules and
regulations as he may deem necessary to carry the act into
effect.

Section 11 (Id., SS 6021) authorizes the attorney general,
or the prosecuting attorneys of the several counties, to
prosecute violators of the act.

Section 12 is a repeal of laws in conflict.

Section 13 (Id., SS 6022) provides as follows:

"The provisions of this act shall not apply to cereal or
flouring mills selling mill bran, shorts, or middlings made in
the regular process of manufacturing cereal or flour."

Section 14 of art. 1 of the constitution provides as follows:

"No law shall be passed granting to any citizen, class of
citizens, or corporation, other than municipal, privileges or
immunities which, upon the same terms, shall not equally
belong to all citizens or corporations."

It will be noticed that SS 1 (Id., SS 6011) of the act,
hereinabove quoted, defines "concentrated commercial feeding
stuffs" to include mixed feeds and mixed meals made from

                STATE v. ROBINSON CO.                249
 Mar. 1915          Opinion Per MOUNT, J.

seeds or grains, and all materials of similar nature used for
food for domestic animals. That section also provides that
the definition "shall not include hay or straw, whole seeds, or
unmixed meals made from the entire grains of wheat, rye,
barley, oats, corn or other cereals, nor wheat flours or other
flours." The act prohibits the sale of concentrated
commercial feeding stuffs by any person, company, corporation or
agent who shall not comply with the provisions of the act.
Section 113 (Id., 6022) expressly exempts cereal and flouring
mills selling mill bran, shorts, or middlings made in the
regular process of manufacturing cereal or flour from the
provisions of the act. It is apparent, we think, that this is an
unreasonable and unjust discrimination. Cereal and flouring
mills are authorized to sell mixed feeding stuffs without
complying with the terms of the act; while all other persons and
corporations selling the same thing are required to comply
with the terms of the act, which imposes onerous conditions.

In In re Camp, 138 Wash. 396, 80 Pac. 547, we held that an
ordinance requiring a license for the peddling of fruits,
vegetables, etc., but exempting farmers disposing of produce
grown by themselves, was unconstitutional because it
permitted growers of fruits and vegetables to sell while
prohibiting others from doing the same thing. In that case we
quoted from State ex rel. Luria v. Wagener, 69 Minn. 206,
72 N. W. 67, 65 Am. St. 565, 138 L. R. A. 677, saying:

"In the same manner as the act here in question attempts
to distinguish between peddling by the manufacturer and his
servant and peddling by the purchaser from such
manufacturer, it attempts to distinguish between peddling by the
farmer or nurseryman and peddling by the purchaser from such
farmer or nurseryman; between peddling by the butcher and
peddling by the purchaser from such butcher. These
distinctions are arbitrary and no proper basis for
classification."

In Spokane v. Macho, 51 Wash. 322, 98 Pac. 755, 180 Am.
St. 1100, 21 L. R. A. (N. S.) 263, we held an ordinance of the

 250    STATE v. ROBINSON CO.
                Opinion Per MOUNT, J.           84 Wash.

city of Spokane unconstitutional which attempted to
regulate by licensing employment agencies. In that case we said,
quoting from Tugman v. Chicago, 78 Ill. 405:

"An ordinance which would make the act done by one penal
and impose no penalty for the same act done under like
circumstances by another, could not be sanctioned or sustained
because it would be unjust and unlawful."

In Seattle v. Dencker, 58 Wash. 501, 108 Pac. 1086, 187
Am. St. 1076, 38 L. R. A. (N. S.) 446, where a city
ordinance imposed a license tax upon the sale of goods by
automatic devices, which discriminated between different
merchants selling the same class of goods, we held such an
ordinance unconstitutional because it was in violation of the
section of the constitution above referred to.

We are satisfied that, under the rule in these cases, the act
under consideration is clearly in violation of the constitutional
provision quoted, because it authorizes cereal and flour mills
to sell mixed and unmixed feeding stuffs, while other persons
selling the same feeding stuffs are required to comply with
the provisions of the act. It is plain, we think, that SS 18 (Id.,
SS 6022), for that reason, renders the whole act void.

It is argued by the Attorney General that a similar act in
the state of Indiana was approved by the supreme court of
the United States in Savage v. Jones, 225 U. S. 501. In that
case the supreme court of the United States upheld a similar
act to the extent that it was not in contravention of any act
of the United States or of the Federal constitution. But the
Indiana act above referred to did not contain any provision
similar to SS 18 (Id., SS 6022) of the act of this state. The
question now under consideration was not in the case of
Savage v. Jones, and the question was therefore not considered by
the supreme court of the United States in that case.

The Attorney General further argues that SS 13 (Id.,
SS 6022) of the act under consideration should be construed
to apply to cereal and flour mills selling only mill bran,

                STATE v. ROBINSON CO.                251
 Mar. 1915          Opinion Per MOUNT, J.

shorts, or middlings made in the regular process of
manufacturing cereal or flour. In other words, he would have us
interpolate the word "only" after the word "selling," in SS 13
(Id., SS 6022). But it is plain from reading SS I (Id., SS 6011)
hereinabove quoted, that it was intended that cereal and
flouting mills should be exempted from the provisions of the act,
and that therefore such mills might sell either mixed or
unmixed feeds, because in SS 1 there is a provision which says
that concentrated commercial feeding stuffs, as defined by
that section, shall not include unmixed meals made from the
entire grains of wheat, rye, barley, oats, corn, or other cereals,
nor wheat flours or other flours. So that it is perfectly plain
that for unmixed feeding stuffs it was not necessary to exempt
cereal and flouring mills. Section 13 (Id., SS 6022) was
inserted for the purpose of excluding these mills from the
provisions of the act.

The Attorney General further argues that if SS 18 (Id.,
SS 6022) is void, it may be excluded from the act, and the
balance of the act may still remain a valid law. But it is
apparent that SS 18 (Id., SS 6022) is a material part of the act. It
is more than probable that if this section had not been
inserted the act would not have passed. It was inserted for
the purpose of excluding cereal and flouring mills from the
operation of the act. To say that this section is
unconstitutional and does not affect the remainder of the act is to say
that every person, firm or corporation is bound to comply
with the terms of the act, when the legislature itself has said
that cereal and flouring mills are not bound by the act. In
short, to hold this section void and the rest of the act valid
is to determine, in face of an express statement of the
legislature to the contrary, that the act applies to all persons
dealing in concentrated commercial feeding stuffs.

We are of the opinion, therefore, that the trial court
properly sustained the demurrer upon this ground. There are
many other objections to the act urged in the respondent's

 252    STATE EX REL. DAVIS v. SUPERIOR COURT.
                     Syllabus.                    84 Wash.

brief, but, in view of our opinion upon this question, it is not
necessary to consider other objections.

The judgment is therefore affirmed.

HOLCOMB, PARKER, and CHADWICK, JJ., concur.