Untitled Texas Attorney General Opinion ( 1939 )

Dept. of Agriculture Opinion No. O-1645
Austin, Texas Re: What, if anything, is the cor-
rect procedure for requiring a
Att'n: E.B. Kuehne public warehouseman to post the
Asst. Director bond required by Article 5569
Market & Warehouse and procure the certificate?
Division What,~ if anything, may be done
in the event he fails to do so?
Gentlemen:
We are in receipt of your request for an opinion upon the
following question:
‘We have received from &mwell E, Welch a letter which reads
as follows:
"'In a suit pending in the Bowie County courts the point
has been raised as to the liability of a public warehouse-
man, operating as a public warehouseman for hire, on his
failure to pose the statutory warehouseman's bond.
'lt Art. 5568, R. C. 3., defines the public warehouseman
as any person who received the articles enumerated therein
for storage for hire, and Art. 5569 provides that the owner,
proprietor, lessee or manager of any public warehouse shall
secure from the County Clerk a certificate to dobusiness
as a public warehouseman and to post bond in the penal sum
of #5,000.00, payable to the state of Texas. The statutes
do not provide any penalty, punishment nor liability for
the failure of the Warehouseman to provide such bond and/or
certificate to transact business as such. What, if any-
thing is the correct procedure for requiring one to post
such bond and procure the certificate? And what, if any-
thing, may be done in the event he fails to do so?'
"For your convenience we are enclosing copy of State Ware-
house Laws, and would appreciate an opinion from you as
to what may be done in case a warehouseman fails and re-
fuses to comply with warehouse laws. in regard~to filling the
required bond, and still operates a warehouse for the public.
In the Uniform Warehouse Receipts Act (S.B. No. 215,
chapter 126, General Laws, 36th Legislature, Regular Session,
Department of Agriculture, page 2 (0-1645)
lYlY),~ Articles 5612-5665, Revised Civil Statutes, 1925, a “wsre-
houseman” is defined as follows in Article 5664:
“tWarehousemanl means a person lawfully engaged in the
business of storing -goods for prof itin
Article 5661, Revised Civil Statutes, 1925, states
“who may become public varehouseman”:
“Any person, firm, corporation, partnership, or asso-
ciation of persons, may become a public warehouseman under
the provisions of this chapter by filing with the county
clerk of the county in whiah he is located and proposes to
do business, a good and sufficient bond in the sum of five
thousand dollars conditioned that he will conduct his busi-
ness in accordance with the provisions of this chapter.
Upon the filing and approval of such bond with the county
clerk, it shall be the duty of the county clerk to imme-
diately certify such fact to the Commissioner of Markets
and Warehouses. Any one injured by the violation of the
terms of the bond, and the provisions of this chapter may
recover damages to the extent of said bond. Should said
bond become impaired by recovery, or otherwise, said Com-
missioner may require such public warehouseman to file an
additional bond, but in no event shall such additional bond
be for a greater amount than five thousand dollars. The
bond required hereunder shall be good for the term of one
year from the date of filing and the right to continue
as a public warehouseman shall be conditioned upon the re-
newal of said bond from year to year, according to the
terms of this chapter. The form of the bond required here-
under shall be prescribed by said Commissioner, and the
bond may be made by any surety company authorized to do
business under the laws of this State; or by two solvent
sureties to be approved by the county clerk of the county
in which such public warehouseman may desire to do busi-
ness .”
Acts 1925, 39th Legislature, Chapter 13, p. 35, 41-6,
abolish thg office of Commissioner of Markets and Warehouses
and the Markets and Warehouse Department and the Weights and Mea-
sures Department and vest their duties and functions in the Com-
missioner of ~bgriculture. See Sec. 1 of Article 5611, Revised
Civil Statutes, 1925.
Article 5568, Revised Civil Statutes, 1925, (Acts 1901,
. 251 Acts First Called Session, 1913; p. 93r Acts Second
Ealled’Session 1919, p. 138) defines “public warehouseman” and
“warehouse”. it is to be observed that these definitions were
passed by the Legislature subsequent to the Uniform Warehouse
Receipts ,Act . See H.B. No. 63, Chapter 54, General Laws, First
Department of , &griculture, page .3 (O-1645)
and Second Called~Sessions, 36th Legislature, 1919.
‘Article 5568 r,eads as follows:
ItAny person, firm, company~, or corporatiouwho shall
receive cotton, wheat, rye, oats, rice, or any kind of
produce, uares, merchandise,:,or :any person.al property in
store for hire, ,shall be deemed and taken to be pubiic ware-
housemen.
“A warehouse, within the meaning of this law shall be
a house, buiiding ) or room in which any of the above men-
tioned ccmmoditie~s -Ire stored and are F?‘otected from damage
thereto by action of the elements.”
It.has been held that the. distinction be-Lween public
and private, warehousemen who receive any description of personal
property in store for. hire his, ins effect, abolished by the pro-
visions of Article 5568 ‘supra , defining “public warehousemen”.
LONGWELL l’R&3F%=i v. E&OTT, 267 S.W. 346.
.A&icle 5569,: Revised Civil Statutes, 1925, provides
f,or t&.obtaining of certificate and bond by “the owner, proprie-
tor, le.isee, or manager’ of any ,pu>lic Xarshouse, whether an indi-
vidual ,firm,, or corporation”. 1,t is to ,be noted that these acts
are to’be done;“before .transacting aily ‘busi~ness in such public
warehousel’., Articl.e,55,69, Revised Civil Statutes, 125,~ should be
compared tiith. krtfcle, 556i, Revised Civil Statutes) 1925. The
former ,article re’a,ds~,as follows:
“The :owner, proprietor, lessee or manager of any pub-
iic Garehocse, whether an individual, firm or corporation,
~before trans~acting any business in such public warehouse
shall procure’from the county clerk of the county in which
the warehouse ,or warehouses are situated, a certificate
*q t e’ ra. at’
yQder the la::s of the State of Texq which certificate
shall be issued by s&d clerk upon a’written application,
setting f,orth the loca~tion and name of such warehouse or
warehouses, and the name of each person, individual or a
member of the firm, interested as owner or principal in the
management of then same, or, ifs the Tarehouse is owned or
.nanaged by a corporation, the name of the president, secre-
.tary and treasurer of such corporation shall be stated,
which ,applicat.ion shall be rece,ived and filed by such
clerk and preserved in his office, and the said certifi-
cate ‘shall, give,, authority to carry on and conduct the busi-
ness of a public warenouee and shall be revokable only by
the distri,ct court of. the count,y ,in which the warehouse or
warehouses are si.tuated, upon a proceeding before the
court, by written petit.ion of any per,son, setting forth
Department of Agriculture, page 4 (0-1645)
the particular violation of the law, and upon- process; pro-
cedure~and proof, as in other civil cases. The D son
mine a certifi cate. as herelp~provided for, sh% fi’l”e
with the county Clerk grantingsame, a bond payable to the
State of Texas, with gdod.and sufficient surety, to be ap-
proved by said clerk, in the penal sum of five thousand
dollars, conditioned for the faithful performance of his
duty as a public warehouseman, which bond shall be filed
and preserved in the’ office of such county clerk.” (under-
scoring ours)
After a most careful search of the civil and criminal
statutes of this state we advise that the statutory law provides
no penalty either in the form of a fine or imprisonment for fail-
ure to file the bond called for in Articles 5461 and 5569, supra,
on the part of any person, firm, or corporation engaged in the
business of a public warehouseman and of storing property for
hire. The Legislature intentionally or through oversight failed
to establish a penalty for violating the bond requirements of
these statutes.
Furthermore, there is no provision of the Constitution
of Texas or statute directly authorizing an equity action by the
state to enforce Articles 5661 and 5569. Nor can we find consti-
tutional or statutory authority to the effect that violation of
the public warehouseman’s bond requirement constitutes an injury
to the property or civil rights of the public at large. We are
therefore unable to hold that the attorney general, the district
attorney and the county attorney may institute and maintain
suits in the name of the state, without statutory or constitu-
tional authority, to protect purely private rights, in which the
state, as such, has no interest, and which Involve no injury to
the property or civil ri hts of the public in gener~a``vP~RT
EMORYIi. HUGHES,Ho. 758$ Supreme Court of Texas; . -
TimsoN, 37 s.w. 478. There is no ‘basis in equity for an injunc-
tion suit by the state to restrain a public warehouseman from
operating without having previously posted a bona.
In Ex Parte Emory H. Hughes, supra, the Supreme Court
commented upon the jurisdiction of a court of equity as follows:
“Our courts of equity, as such, have no jurisdiction
to entertain suits to enjoin the commission of acts merely
because such acts constitute crimes or penal offenses un-
der penal laws. This is because equity is not concerned
with the enforcement of penal or criminal statutes. When
the State, through its proper officers, Invokes the juris-
diction of a court of equity to abate a nuisance, it must
be shown either that the action is directly authorized by
some constitutional or statutory law, or that such nni-
sance is an injury to the property or civil rights of the
” .
Department of Agriculture 9 page, 5 (O-1645)
public at, large,. - that``is, ,to the public generally, ***II
Failure to file the bond re uired of a public ware-
houseman in compliance with Articles L!661 and 5569, supra, does
not constitute a public nuisance.oran injury to the entire pub-
lic such as to give the state a justiciable interest and support
a state suit to enjointhe operation of the public warehouseman
without statutory authority.
We do not question the power and authority of the Leg-
islature to authorize fan injunction suit by the state against
the public warehouseman who refuses to file a bond, and to re-
strain him from operating, but it has not done so and in, view of
the authorities above quoted it is not to be assumed, that the
court would invade the legislative prerogative and create a rem-
edy by injunction by judicial construction.
24 TEX.JUR., pe 70:
‘I*** The legislature, however9 has the power to au-
thorize the issuance of injunctions to prevent injury to
the public by violations of law which are also crimes; and
it has done so in many cases. Thus it has provided that
the writ may be granted to abate or prevent the keeping of
disorderly houses and gambling places, the operation of
unlicensed employment agencies and illegal pipe lines, the
maintenance of offensive dumping grounds, the formation
of monopolies and combinations, the waste of natural gas,
the sale of defective fertilizers, the unlawful practice
of medicine 9 the violation of intoxicating liquor laws,
the unlawful use of motor vehicles, and perhaps others.”
24 TEX.JUR., pe 218
While it is a genera3 rule that the state may sue for
an injunction to prevent criminal acts whenever its inter-
ests or the interests of those entitled to its protection
are injuriously affected, it seems that the state has no
right to an injunction to prevent commission of a misdem-
or which is neither a nuisance nor a violation of any prop-
erty right 0 There are also various statutes which author-
ize injunction suits in the name of the state to prevent
acts which are injurious to the public, although they may
not be positive crimes.”
It is our opinion that in the absence of a statutory
penalty for violation of the bond provisions of titicles 5569
and 5661, Revised Civil Statutes, 1925, and in the absence of
constitutional and statutory authorization of the remedy of in-
junction the state is powerless at law or equity to proceed
Departmentof Agriculture,page 6 (0-1645)
against a~piib1l.c
warehtiuseman whb falls landrefuses to comply
with the warehouse laws in regard to filing the required bond.
Trustingwe have fully answered your inquiry,we are
Yours very truly
ATTOBJEY~GI3NEWJ.a
OF TEXAS
sy /s/ Dick Stout
Dick Stout, ,Assistant
APPROVED NOV 29, 1939
is/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED:OPINION COMMITTEE
BY: BWB,CHAIRMAN
DS:ob:vb