Untitled Texas Attorney General Opinion ( 1939 )

OF TEXAS
April 4, 1939
Honorable George H. Sheppard i$nion No: O-545
Comptrollerof Public Accounts : *Trinity-Mix"is cement
Austin, Texas and subject to cement tax.
Dear Sir:
..
:.
~hi~,ia inanswer.to your letter of March 24, 1939, which reads as
follows':
'The question has arisen in this departmentasto the taxa-
bility of *TrinityMix? (a sort oflPrtar preparationput out
by certain cement companies). The attached copy~of.a~letter.~.:
written by the cement.companyto our Tax Supervisor~;'Mr."B.C.;:
Bearden, explains fully the ingredients..of.,this~mortar.
,~i;::y<,Y'
.~.
"1 will thankyou ~toadvise this departmentwhether this pro-
duct is tamable under.the_.s~tute..lenying.a.~tax.on
cement.",
_:.
The attached copy..of~the
letter to Mr. Beardenthat ;you~ refer"to .~.
which-is from the attorheys for the cement company concerned,reads,
in part as:follows:. :-
"The producthereinabove referred to, manufacturedby Trinity
Portland Cement Company, which is under diacussion,atthis
time, is what is commonly termed orknow;&aardinary masonry
mortar .andcontains some ingredientswhich are likewise con-
tained in cement, nevertheless,thefinished.productsare entire-
ly different. Cement, as the.writerunderstands~it,may icon-
tain various forms of stone ~whichare.burnedunder high heat
and treated in'various forms. After beinghurnedby~high heat
and treated, the product comes out inwhat is commonly termed
among cement people as a clinker form, that,is, in round
j pellets. These clinkers are then ground very fine and-sifted
through meshes-or--screensof a very fine sieve, that is, so
fine that the sieve, as I understand it, will hold-water. Af-
ter receiving this treatment, the fine powder.is treated.
During this same treatment,orperhaps there-afterwards,this
pulverized clinker is treated.with.gypaum,.thraughly mixing
the two products and you-then inturn have%hat is'commonly
known and understood among thencement industry as cement; and
generally and fin fact commonly knovn``as.P``d..Cement, which
has a well defined and well understood..meaningamong persons
conversantwith the cement industry. This,finished product
Honorable George H. Sheppard,page 2 O-545
which is termed and known as cement is used for many and sundry
purposes, such as makingmortar, plaster, concrete and many
times in its raw state by adding water to it and for numerous
other similar purposes.
"The product here under consideration,which is commonly
known as Trinity Portland Cement Company's finished product
of mortar, is manufactured,as the writer understands it, in
the followingmanner. The clinkers above referred to, without
being ground and without being treated with gypsum, are taken
in their raw state as they come from the furnace, mixed with
lime rock in its raw state, containingapproximately47 or
48 per cent of lime after the same has been burned, treated
and reduced to lime. This lime rock in itsraw state, without
being treated in any particular,~isground and pulverizedwith
.-the clinkers,both productqbeing mixed-and ,placedthrough a
sieve and then you~have the finished~product.:~The,percentage
of lime rock and clinkersused-in this finished product, vary,
depending upon the strength ordurability or mortar desired.'
This finished product Is museda.smortar,~as I..understand.
it,
snd,,
is.nothing;in.facthut a:.preparedmortar;".:
..~
.i_.
.,~.
ihe~statute:in'iqu~atioh..is'.pjlr;?graphi.
(a)':;f:
H&rii;;
B&c.~o;:j~ji,Acts
1931, Forty+secondLegislature,, p.~355;.::ch;'
212,'j'how
codified.as
Section 4la of Article 7047 of VernonVAnnotated‘Revised Civil
Statutes of Texas, which.reads``asfollows:
*There is hereby imposed109 Tex. 220, 204 S.W. 315; and Bradford v. Hunt,
15 Fed. Supp. ~428.
Webster's New InternationalDictionary, Second Edition, defines
the word "cement" as follows:
"A substancewhich is mixed with water and used in a soft or
.pastystate to join stones.orbricks ,ina building, to cover
floors, etc., and which afterwardsbecomes hard like stone;
esp., such a substancemade with lime, or a calcined mixture
of clay and limestone.*
Honorable George H. Sheppard, page 3 O-545
Very few courts have made an expression on the word "cement",and
about the only definitionof the word as given by a court is in the
case of Brunswicke-Balke-Collender Co. v. Seamless Rubber Company,
2'7Fed. (2d) 925, as follows:
"The term (cement',as commonly used, implies a substancedis-
solved in a solvent, and when the solvent is evaporatedthe
cement hardens, and binds the layers of material together."
In 14 Corpus Juris Secundum 61, we find a definitionas follows:
"In its ordinary commercialsense, the work has been defined
as a substanceused in a soft or pasty state to join stones
or bricks in a building,etc., which.afterward.becomes hard
like stone.?
. ..~
These&e.definitidtisoL-th&word as.it~'&'ordina&.Iy~ used andi
understood.
It seems to be the contentionthat cement is usually made by a pro-
cess that resultsin a product called Bortland.cementl, and that the
" 'Legislaturedid not intend for this tax toapply~to cementmade by
to:any other:kindzofcsment. .We. do .notagree
‘any other .process,,~or
with that contention; We:believe-that.any...product
thatmeets.the
definitiono,f*cement"as that,.wordisordinarily~used~and-under-
stood is cement within the terms of the statute. The definitions
of~cementare not concerned.with-theprocess by which ,it-.Tsmads,
and in determiningwhether or-nota .productis'.cement, we .shouldnot
look to the method by whichit ismanufactured., We ~lookto see
what the product does .and..-hicnr-it-'``~;,.'::~-_,
.$.,I
A good discussionof ce,ment .isfouud.inVolume~.6of The Encyclopedia
Americana at page.189, as ,follows:,~
*A cement is any,compo.u&which; under certainconditions, is
Blastic~a.nd.underothersdevelops,tenacity,and.can be used
for holding togethervarious’materials; hence glue, lime,
asphaltum,mucilage and.solderarecements., By far the most
importantclass of cements, structurallyand commerciallyare
the hydraulic Cements,,compoundsof ,lime,silica and alumina
that have the propertywhen mixed with.waterto a.paste of
cohering or settingand.-finally'becomingstone hard, even un-
der water. The hydraulic cements may be divided into.four
classes based on differencesin the materialsused.
"The four classes of hvdraulic buildi&material above men-
tioned are: (1) Hydraulic lime ~made*froma limestone contain-
ing a small proportionof clay (8 to.lO.~percent) by burn-
ing ata low temperature,~and138 S.W. 1037. And a thing or subject which
is not within the intent and sprit of the statute is not with-
in the statute though within the letter. Sutherland'sStatu-
tory Construction,Section 379, page 730; Hawaii v. Manckichi,
190 U.S. 197; Pool v. Simmons, 134 Calif., 621. The words or
clauses may be enlarged,or restricted to effectuatesthe inten-
tion or to harmonize them with other express provisions.
Where general language construed in a broad sense would lead
to absurdity, it may be so restrained. Peop1e.v. Davenport,
91 N.Y. 574; McKee v. United States, 164 U.S. 287; Sutherland's
Stat.utoryConstruction,Section 376, page'721.
"Bearing in mind the above rules of construction,it is the
opinion of the writer that the Legislature intended to impose
the tax upon any substance of a cementitiousnature, which,
in my opinion, would be commonly understood to mean such
Honorable George H. Sheppard, page 5 o-545
cement as is used in construction work, namely, the construc-
tion of buildings, roads, sidewalks, and the.~like,and would
not apply to such substance as dental cement, belting cement,
and like substances as mentioned in your inquiry. It seems
that this theory is supported by the act itself by imposing
only a nominal tax upon the one hundred pounds of such cement
which, I understand, is the standard unit for sale of cement
used for ordinary construction work."
It is our condlusion that the word "cement" in the statute means
cement as that term is ordinarily used and ~understo,od,
and the best
definition we can find of this term in regard...to.
how.it is ordi-
narily used and understood is the definition quoted above from
Webster's Dictionary; and under that definition the product in
question is cement.
..
Our answer to your question is that it is our opinion that "Trinity-
MIX", as that product has been explained to us, is.cement, and,
therefore, is subject to the cement tax.- ._
Yours very truly
~ATTORWEYGRWEXALOF'D3XAS
By /s/Cecil.C. Rot&h
Assistant
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