Untitled Texas Attorney General Opinion ( 1952 )


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  •                    August   27,   1952
    Hon. Geo. W. Cox, M.D.       Opinion No. V-1512
    State Health Officer
    State Dept. of Health        Re: Necessity that bedding
    Austin, Texas                    manufactured in Texas
    for sale outside the
    State comply with the
    bedding stamp require-
    ments of the Texas
    Dear Dr. Cox:                    Bedding Act.
    Your request for an Opinion of this office
    reads In part as follows:
    IWe should like to know if bedding
    manufactured In Texas and sold outside
    the State of Texas through wholesale and
    retail commercial channels is required to
    have affixed an adhesive stamp (tax stamp)
    under the provisions of the Texas Bedding
    Act.
    "We believe that the wording of the
    Act requires that any person who manufac-
    tures, who renovates, or who sells or
    leases any bedding covered by the provi-
    sions of this Act should have an adhesive
    stamp (tax stamp) affixed regardless of
    the ultimate destination of the article."
    Section 7 of Article 4476a, V.C.S. (Bedding
    Act), provides in part:
    'Sec. 7. (a). No person shall manu-
    facture, renovate, sell or lease or have
    in his possession with intent to sell Or
    lease in the State of Texas, any bedding
    covered by the provisions of this Act, un-
    less there be affixed to the tag required
    by this Act by the person manufacturing,
    renovating, selling or leasing the same,
    an adhesive stamE prepared and issued by
    this Department.
    .   -.
    Hon. Geo. W. Cox, page 2 (V-1512)
    The language of Section 7 of Article 4476a
    clearly provides that bedding manufactured in Texas is
    required to have a stamp affixed regardless of where
    the bedding is to be sold. Therefore, we agree with
    you that bedding manufactured in Texas and sold outside
    Texas is required to have an adhesive stamp (tax stamp)
    affixed, if the statute does not violate the commerce
    clause of the United States Constitution (Art. 1 Sec.'
    8 cl. 3). Section 8 of Article I of the Federal Consti-
    tution provides in part:
    "The Congress shall have Power To lay
    and collect Taxes, Duties, Imposts and Ex-
    cises, to pay the Debts and provide for the
    common Defence and general Welfare of the
    United States; but all Duties, Imposts and
    Excises shall be uniform throughout the
    United States;
    "To regulate Commerce with foreign
    Nations, and among the several States, and
    with the Indian Tribes;"
    Should it be considered that the regulations
    and fee charges incident to the regulation operates on
    manufacturing alone, it has been held that manufactur-
    ing Is not a part of interstate commerce and consequent-
    ly the prohibition of the Commerce Clause would not be
    applicable. In American Manufacturing Co. v. St. Louis,
    
    250 U.S. 459
    (1919) the city of-St. Louis levied against
    manufacturers a tax'imposed as a condition of a grant of
    a license to carry on a manufacturing business in that
    city, the amount of which was to be ascertained by the
    amount of sales of manufactured goods whether sold within
    or without the State. In upholding this tax the Court
    stated:
    "In our opinion, the operation and ef-
    feet of the taxing ordinance are to impose
    a legitimate burden on the business Of
    _ .
    carrying on the manufacturing Of goods In
    that city; it produces no direct burden on
    commerce in the goods manufactured, whether
    domestic or interstate, and only the same
    kind of incidental and indirect effect as
    that which results from the payment Of
    Hon. Geo. W. Cox, page 3 (V-1512)
    property taxes or any other and general contri-
    butions to the cost of government. It there-
    fore does not amount to a regulation of inter-
    state commerce. D D .It
    See also Utah Power & Light Co. v. Pfast, 
    286 U.S. 165
    (1932).
    __ . Considering next the effect of the regulation
    should it be one on the selling of bedding; it has been
    held that under the federal constitutional system, there
    necessarily remains to States, until Congress acts, a
    wide range for permissible exercise of power appropriate
    to their territorial jurisdiction, even though interstate
    commerce may be affected thereb
    Alexandria, 
    341 U.S. 622
    (195l.y' Breard v* City Of
    We have been unable to find any Federal Statute
    regulating the manufacturing, renovating, selling or leas-
    ing of bedding.
    In Milk Control Board of Pennsylvania v.
    Eisenberg Farm Products, 
    306 U.S. 346
    (1937) the court
    had before it a statute which regulated the sale of
    milk and required a license of all persons in Pennsyl-
    vania who were selling milk. The Court held that since
    Congress had not legislated on this subject matter and
    since only a small portion of the milk produced in the
    state was shipped outside ~the state, the act was not a
    burden on interstate commerce. Also in Townsend v.
    Yeomans, 
    301 U.S. 441
    (1937) a Georgia statute fixing
    maximum charges for handling and selling leaf tobacco
    was held not invalid as placing a burden on interstate
    commerce though practically aIl:.bfth8,,Coba~coi,gr6wni:Yn
    the state of Georgia was shipped outside the state.
    In H. P. Hood & Sons v.,BuMond, 
    336 U.S. 525
    (19@), the Court was considering a case where a distri-
    butor of milk in Massachusetts sought a license for a
    receiving station in New York enabling him to compete
    with purchasers of milk in the area in New York State
    where the receiving station was to be located. In up-
    holding the right of the New York State Commissioner of
    Agriculture and Markets to deny a license on the basis
    that the area did not have an'adequate supply to allow
    another receiving station, the Court stated:
    Hon. Geo. W. Cox, page 4 (V-1512)
    "Our decision in a milk litigation :
    most relevant to the present controversy
    deals with the converse of the present
    situation. Baldwin v. G.A.F. Seelig, Inc.,
    
    294 U.S. 511
    , 
    55 S. Ct. 497
    , 
    79 L. Ed. 1032
    ,
    101 L. R. A. 55.  In that case, New York
    placed conditions and limitations on the
    local sale of milk imported from Vermont
    designed in practical effect to exclude it,
    while here its order proposes to limit the
    local facilities for purchase of additional
    milk so as to withhold milk from export.
    The State agreed then, as now, that the Com-
    merce Clause prohibits it from directly
    curtailing movement of milk into or out of
    the State. But in the earlier case, it
    contended that the same result could be ac-
    complished by controlling delivery, bottling
    and sale after arrival, while here it says
    it can do so by curtailing facilities for
    its purchase and receipt before it is ship-
    ped out. In neither case is the measure
    supported by health or safety considera-
    tions but solely by protection of local
    economic interests, such as supply for local
    consumption and limitation of competition.
    This Court unanimously rejected the State's
    contention in the Seelig case and held that
    the Commerce Clause, even in the absence of
    congressional action, prohibits such regu-
    lations for such ends.
    "(1,2) The opinion was by Mr. Justice
    Cardozo, experienced in the milk problems
    of New York and favorably disposed toward
    the efforts of the State to control the
    industry. Hegeman Farms Corporation v.
    Baldwin, 
    293 U.S. 163
    , 
    55 S. Ct. 7
    , 
    79 L. Ed. 259
    ; Borden's Farm Products Co. v. Baldwin,
    
    293 U.S. 194
    , concurrence at page 213, 
    55 S. Ct. 187
    , at page 193 
    79 L. Ed. 281
    ; May-
    flower Farms v. Ten Eyck, 
    297 U.S. 266
    ,
    dissent at page 274, 
    56 S. Ct. 457
    , at page
    459, 
    80 L. Ed. 675
    . It recognized, as do
    we, broad power in the State to protect
    its inhabitants against perils to health or
    safety, fraudulent traders and highway haz-
    ards even by use of measures which iear
    adversely upon interstate commerce.
    Hon. Geo. W. Cox, page 5 (V-1512)
    Also see Parker v. Brown, 317,~U.S.341 (1943).
    In view of the above authorities we believe
    that this small fee, which Is incldental~to the exercise
    of the State's police power to protect public health in
    the sale of bedding Is not a burden on interstate com-
    merce.
    SUMMARY
    Section 7 of Article 4476a, V.C.S. re-
    quires that bedding manufactured in Texas
    and sold outside Texas have an adhesive
    stamp affixed.
    Yours very truly,
    APPROVED:                          PRICE DANIEL
    Attorney General
    J. C. Davis, Jr.
    County Affairs Division
    E. Jacobson
    Reviewing Assistant
    Charles D. Mathews
    First Assistant
    BA:am