(dissenting) — In my opinion, the question in this case was decided in Inman v. Sandvig, 170 Wash. 112, 15 P. (2d) 696, contrary to the contention of the appellant. In that case, the illegality of the rules adopted by the Director of Agriculture was challenged. Prior to August 1, *4391932, 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 Washington. 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 determined dimensions was established in 1903, by statutory law; that it had been the custom for many years 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 disclosed that C grade apples, as defined by the rules prior to 1932, were not detrimental to public health in their consumption as food, and were as free from fault as were the C grade apples defined by the rules adopted August 1, 1932; that a very large quantity of apples produced in this state each year were of the C grade, as defined by the old rule; and that there was no necessity for the rule based upon consideration of health.
This court stated, page 118:
“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 Art. I, § 12, of our state constitution, providing that
“ ‘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.’
“The word ‘law,’ as used in this section, manifestly includes a rule made by any administrative authority, as well as a law made by direct legislative authority. Our conclusion *440seems to us so plainly correct as to render it unnecessary to call for any extended review or citation of the many court decisions and texts supporting it. The 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 his property without due process of law may be violated without the physical taking of property for public or private use. Its capability for enjoyment and adaptibility to some use are essential characteristics and attributes without which property cannot be conceived. 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 destroys its value, or restricts or interrupts its common, necessary or profitable use, or hampers 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 apply not only to statutes enacted by the legislature but to the action of executive officers generally.’ ”
I am unable to distinguish Inman v. Sandvig, supra, from the instant case and feel that the court is bound by its holding.
August 19, 1960. Petition for rehearing denied.