Untitled Texas Attorney General Opinion ( 1952 )


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  •                       August 8, 1952,
    Hbn. Coke R: Sfevenson~,,Jr.'.~
    Administrator
    Texas Liquor Ooatrol Board
    Austin, Texas              Opinion Ro. V-1503
    Re:   Legality of a C,lassB
    Wholesaler'stransport-
    ing ale in a motor ve-
    hicle which he holds as
    lessee under a year-to-
    Rear Mr. Stevenson:              year lease.
    Inyour letter requesting an opinion of thla
    office youratate that you are concernedwith Paragraph
    (If,),Section 15, of the Texas Liquor Control Act (Art.
    666-15, V.P.C.). Specifically,you ask whether a Class
    B Wholesaler can transport ale in trucks which he holds
    as leasee on a year-to-yearlease with an optton to pur-
    chase ,oran,agreementto purchase on demand of the les-
    sor, In view of the above mentioned paragraph of the
    Liquor Control Act.
    Paragraph (13) of Article 666-15, V.P.C., reads
    in part:
    "Private Carrier Permit. Brewers, dis-
    tillers, wineries, rectifiers,wholesalers,
    Class B Wholesalers,and'Wlne Bottlers Per-
    mittees shall be entitled to transport liquor
    from the place of sale or distributionto the
    purchaaer,,uponvehicles owned in nood faith
    by such permitteeswhen such tfansportation
    is for a lawful purpose; . . . (Emphas~ls ours
    throughout.)
    Paragraph (5) of Article 6663a, V.P.C., reads:
    "'Liquor',shallmean any alcoholic bev-
    erage containingalcohol in excess of ,four(4)
    per centum by weight, unless otherwise lndl-
    cated. Proof that an alcoholic beverage Is al-
    cohol, spirits of wine, ,whiskey,liquor, wine,
    brandy, gin, rum, ale, malt liquor, tequila,
    Hon. Coke R. Stevenson,Jr., page 2, (V-1503 1
    mescal! habanero
    . - or barreteage,
    .. . ..    shall be
    _.
    prima-I'acleevlaence tnat tne same 1s lx-
    quor as herein defined."
    It 18 contended by the lessor of the trucks
    in question that the ,definitionof eowner" as set out
    In Section 10, Subdivision (d), of Article 6701d, V.C.S.,
    controls the question here involved.
    Section 10, Subdivision (d), Article 6701d, reads:
    "Owner. A person who hold8 the legal
    title of a vehicle or in the event a ve-
    hicle 18 the subject of an agreement for
    the conditionalsale or lease thereof with
    the right of purchase upon performanceof
    the COnditiOn8 stated in the agreement and
    with an Immediate right of possession vested
    in the conditionalvendee or lessee, or In
    the event a mortgagor 0f.a vehicle ia en-
    titled to posses8ion,then such conditional
    vendee or lessee or mortgagor shall be deem-
    ed the owneP for the purpose of this Act."
    lTNs Act" referred to above is clearly Article
    6701d, V.C.S., entitled "Uniform Act Regulating Traffic on
    Highways.' Rothing in the act indicatesa legislativein-
    tent to extend this definition to any statutes other than
    to Article 6701d.
    For an answer to your q;estion we must look not
    to the meaning of the word owner in Article 6701d but to
    the meanlng intended by the Legislaturein the particular
    statute under consideration,Article 666-15, V.P.O. Here
    the term *owner in good faith* 18 wed.
    The verb 'owned" has been used in the sense of
    a good legal title. Miller-LinkLumber Co. v. Stephenson,
    
    265 S.W. 215
    , 220 (Tex. Civ. App. 1924 Aff'd, Tex. Comm.
    APP., 277 S.W. =‘39), wherein the court saidl
    "        to own mean8 to hold as property,
    to have'a'ligalor rightful title to. 21 A. &
    E. Eveg. Law (26 Ed.) 1025. to have a good and
    legal title to. 29 Cyc 1548, 1549. An owner
    is defined: 'one who owns; a proprietor;one who
    has the legal or rightful tltler Webster, lone
    who has dominion of a thing, real or personal,
    corporeal or incorporeal,which he haa the right
    :   -
    ,Bon.Coke R. Stevenson,Jr., page 3, (V-1503)
    to enjoy,a,nddowithas h8 plea8es,,  either. .,-
    to spoil or dastroy-,itaa.,faras the,.law, ;
    permits.,unlessihe-beipreventedby 808M ,a.gree-
    ment,or,covenan.t~wNchresf,rains M,s ,rlght.te,
    ,, ,;
    We recognize that the term eowner"'i.8often con-
    strued to include.oneholding property under lease. Atty.
    Gen. Op. V-1497 (1952). The constructiondepends upon the
    context and purpose:s:
    ,ofthe statute in which the~.te,rmls
    used.
    It is our belief the word8 *owned in~good faith
    by' were u8ed UiParagraph 13 of Article 666-15 of the Tex-
    as LSquor Control.'A&'inthe sense of an absoluteand un-
    qualified.legaltitle., In Paragraph (g) -ofArticle 667-231
    of the Liquor C,ontrolAct, a section similar to~paragraph
    l..ez:,Artlcle666-i5 but appiylng to the trensportationof
    the word8 or leased immediatelyfollow the word
    owned,'whilethese words are consplciouslyomitted from Par-
    agraph 13 of Article 666-15.
    Paragraph 13 of Article 666-15 reads in part:
    * . . . upon vehicles owned In good faith
    by such permittees . . .*
    Paragraph (g) of   Article   667-23t reads in part:
    *   . . in vehicle8 owned or leased in good
    faith by him."
    The Legislaturehaving limited the transportation
    in Article 666-15 to "vehicles owned in good faith while
    expressly authorizingthe use of "leased veNcles In Arti-
    cle 667-23t clearly indicates a legislativeintent to re-
    quire permittees under the former section to have absolute
    legal title In vehicle8 used for transportingliquor. This
    is in accord with well establfahedrules of statutory con-
    struction. 2 Sutherland Statutory Construction (3rd Rd.
    1943) 414.
    SUMMARY
    A Class B Wholesaler cannot transportale
    from the place of sale or distributionto the
    purchaser upon a motor vehicle which he holds
    as a lessee under a year-to-yearlease wlth an
    Hon. Coke R.. SteVen8On, Jr.,   page 4,   (V-1503)
    option to purchase op agreement to purchase
    on dtimand of th@ leasop.   To do 80 would
    violate  Article 666-15,~ V.P.C., which re-
    stricts  a’Class B Wholesaler transporting
    ale to ‘vehicles  owned in good faith by such
    permittee?.”
    Yours very    truly,
    APPROVBDr                           PRICl5 MlCIBL
    Attorney  Qeneral
    Red McDaniel
    State Affairs        Mvlsion
    E. Jacobson                       By2uk            k-4Jkta
    Reviewing Assistant                  Milton    Richardson
    A8818tant
    Charles    s. Mathews
    First    Assistant
    RR/et
    

Document Info

Docket Number: V-1503

Judges: Price Daniel

Filed Date: 7/2/1952

Precedential Status: Precedential

Modified Date: 2/18/2017