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Opinion 97028


DATE: May 13, 1997

SUBJECT: Dry Bean Resources Act - First Purchasers




REQUESTED BY: Nebraska Dry Bean Commission




WRITTEN BY: Don Stenberg, Attorney General

Steve Grasz, Deputy Attorney General




You have requested an Attorney General's Opinion regarding the

definition of "First Purchaser" for purposes of collecting the fee

authorized by the Nebraska Dry Bean Resources Act (the Act).

Specifically, you have requested clarification as to the scope of

the definition of First Purchaser, and whether the Commission's

understanding is correct that "every bean grown in the State of

Nebraska is subject to the tax, whether it is seed or commercial."




The Dry Bean Resources Act defines first purchaser as follows:




First purchaser shall mean any person, public or

private corporation, association, partnership, or limited

liability company buying, accepting for shipment, or

otherwise acquiring dry beans from a grower and shall

include, but not be limited to, a mortgagee, pledgee,

lienor, or other person having a claim against the grower

when the actual or constructive possession of such dry

beans is taken as part payment or in satisfaction or the

mortgage, pledge, lien, or claim.




Neb. Rev. Stat. Ann. § 2-3741 (Michie 1995) (emphasis added).

Thus, a first purchaser includes any person or legal entity buying,

accepting for shipment, or otherwise acquiring dry beans from a

grower. Id. Other relevant portions of the Act must also be

consulted, however, in determining which beans are subject to the

fee.




The Nebraska Supreme Court has long held that "statutes

relating to the same subject matter are in pari materia, and a

court will construe them together so as to determine the intent of

the Legislature and to maintain a consistent and sensible scheme."

State ex rel. Scherer v. Madison Cty. Comrs., 247 Neb. 384, 387,

527 N.W.2d 615 (1995).




Another portion of the Act provides that "there shall be paid

to the Commission a fee . . . upon all dry beans grown in the State

. . . and sold through commercial channels." Neb. Rev. Stat. Ann.

§ 2-3755 (emphasis added). This fee is to be paid "whether such

dry beans are stored or marketed in this state or any other state."

Neb. Rev. Stat. Ann. § 2-3757.




When all parts of the Act are read together, we conclude that

the fee is intended to be applied broadly and is applicable even

where a grower markets his or her own dry beans, either

individually or through a grower/processor organization. In

Informal Opinion I91-058 (June 27, 1991), we previously advised the

Commission that "the Commission is authorized by statute to collect

the fee on all dry beans grown in Nebraska and sold through

commercial channels. . . ." In this opinion, we also advised the

Commission that the fee could be collected retroactively upon

discovery of unreported sales. A copy of this informal opinion is

enclosed.




We note that our conclusion regarding the broad definition of

first purchaser is consistent with testimony contained in the

legislative history of the Act. In discussing the need for the

Act, one witness stated, "It is necessary that each individual and

each business that benefits from these activities share in their

expense." Committee Records on LB 145, 90th Legislature, 1st

Session 3 (Feb. 10, 1987) (Testimony of Mr. Fred Ehrman).




Sincerely yours,




DON STENBERG

Attorney General




Steve Grasz

Deputy Attorney General