More for Fans of “And” and “Or”

Hot on the heels of last month’s or case comes one about and.

The article I wrote with Alan Kaye on the ambiguity of and and or was cited in Philip Services Corp. v. City of Seattle, 2007 U.S. Dist. Lexis 14906 (Mar. 2, 2007 S.D. Tex.). (Click here for a copy of this case.)

The article came out all of a month ago. If there’s some obnoxious competition among law school professors to see how quickly they can get a law-review article cited, I reckon that Adams & Kaye would be a contender, at least in the category reserved for decidedly unsexy topics.

That’s the good news. Rather less fortunate is the fact that in addition to citing our article for the proposition that and and or are confusing (Amen!), the court also cited our article as quoting F. Reed Dickerson to the effect that “in most cases … ‘and’ is used in the several rather than joint sense.” Sure, we included that quotation, but only to point out that it doesn’t make much sense. It’s a polite way of suggesting that often and means or.

At issue in this case was the Seattle Municipal Code section 5.48.055, which states in pertinent part as follows:

Upon everyone, including The City of Seattle, engaged in or carrying on the business of the collection of garbage, rubbish, trash, CDL Waste, and other solid waste, a fee or tax meansured by the total of components 1 and 2 below:

Philip Services argued that because the conjunction and was used, a taxpayer would only be subject to the tax if it collected all five types of waste.

The court held as follows:

The ordinance makes it clear that the enumerated categories of waste are a group that is to be considered separately and individually, not together or collectively. The inclusion of “other solid waste” in the listed categories means that if the categories were considered only collectively, the result would defy common sense. “Other solid waste” includes—but is not limited to—all the other enumerated categories of waste. To interpret “and” to require collective consideration would mean that the only business to which the collection tax applied could be businesses that collected every possible type of solid waste. To interpret “and” as is usually done, in the “several rather than joint sense,” means that the ordinance applies to a business that collects any of the categories of enumerated waste, which is consistent with the words used and common sense.

The court reached a sensible conclusion, but it’s a shame that it had to invoke Dickerson’s assertion.

In the language at issue, taking the and at face value does indeed result in the counterintuitive meaning suggested by the court. But getting around that doesn’t require you to hold—linguistics be damned!—that and means or.

Were I in the court’s position, I would have observed that it’s unrealistic to expect drafters always to understand the implications of a strict reading of a given and or or.

More specifically, it would have been best if the provision had referred to “the business of collecting one or more of garbage, rubbish, trash, CDL Waste, and other solid waste.” But you can’t assume that because the drafter didn’t use that language, you should therefore take the and at face value.

So judges, if you encounter a counterintuitive and, don’t wave your wand and declare that it means or. Instead, recognize that drafters of statutes and contracts are largely oblivious of the subtleties of and and or. All you can do is make the best of a bad job and try to figure out the intended meaning. That’s in fact what the court did in this case.

Incidentally, using or instead of and in the provision at issue wouldn’t have represented an improvement, as that might have prompted a taxpayer to argue that it wasn’t subject to the tax as it was in the business of collecting, for example, garbage and rubbish.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.