Request By:
Mr. Charles Prebble
Director
Division of Weights and Measures
Department of Agriculture
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
This is in reply to your memorandum raising a question concerning KRS 248.350 which prohibits discrimination by tobacco warehousemen. Your office has been asked if tobacco warehousemen may charge one commission for selling hand-tied tobacco and a lesser commission for selling baled tobacco. Warehousemen maintain that it takes less labor to prepare baled tobacco for sale than it does to prepare hand-tied tobacco for sale. They desire to pass the savings on to the tobacco farmers by charging a lower commission for selling baled tobacco than they charge for selling tied tobacco.
Selling tobacco by the bale method was first introduced for the 1978-1979 selling season. Originally tobacco farmers were required to file an application to sell tobacco by the bale method and they were permitted to sell as much as ten percent of their allotted crop by this method. Applications are no longer required and a farmer may now sell as much of his crop as he desires by the baled method. The bale method of selling began as an experimental and voluntary program and it continues as a voluntary program. The objective of this method of sale is to reduce costs and expenses to farmers and warehouses and apparently the prices paid for baled tobacco have been only slightly below those paid for tied tobacco.
KRS 248.350 provides in its entirety as follows:
"(1) No warehouse or warehouseman or person acting on behalf of any warehouse or warehouseman shall discriminate against any grower of tobacco in any way, including but not limited to, the sale, transportation, or handling of tobacco. All tobacco growers shall be entitled to the exact same considerations as all other tobacco growers serviced by the same warehouse.
(2) No tobacco warehouseman selling leaf tobacco in this state shall discriminate between purchasers as to charges, samples, warranty or otherwise, whether the purchasers are members of the tobacco exchange or not."
In connection with discrimination we initially direct your attention to
Standard Oil Company v. Boone County Board of Supervisors, Ky., 562 S.W.2d 83, 84-85 (1978), where the Court said in part as follows:
"'Probably no law contrived by man for his own governance ever has been or will be enforced uniformly and without exception. But the Constitution does not demand perfection. It is only the obvious and flagrant case that warrants relief. . . .'
City of Ashland v. Heck's, Inc., Ky., 407 S.W.2d 421, 424 (1966). Rather than Sec. 171 of our Constitution, the Equal Protection Clause of the 14th Amendment and Sec. 2 of the Kentucky Constitution are the source of relief from unreasonable discrimination, and it is our opinion that in order to invoke those fundamental protections against the unfair administration of a law that is not itself unconstitutional the unequal treatment must amount to a conscious violation of the principle of uniformity. . . ."
Notwithstanding the above-quoted provisions from the Court's decision in the Standard Oil Company case, supra, the fact remains that the General Assembly apparently has eliminated flexibility and precluded the utilization of reasonable classifications in connection with the sale of tobacco by tobacco warehouses. The statute [KRS 248.350(1)] states that "All tobacco growers shall be entitled to the exact same considerations as all other tobacco growers serviced by the same warehouse. " The General Assembly could amend the statute if it desires to permit tobacco warehouses to charge lower commissions or selling fees to customers who elect to sell their tobacco by the bale method than it charges to tobacco farmers who elect to sell their tobacco by the tied method.
Thus, it would appear to be a violation of the antidiscrimination provisions of KRS 248.350 for a tobacco warehouse to charge a lower commission to tobacco farmers who elect to sell their tobacco by the bale method than it charges to tobacco farmers who elect to sell their tobacco by the tied method. We are sending a copy of this opinion to Mr. Vic Hellard, Jr., Director of the Legislative Research Commission, for such use as he deems appropriate.