Untitled Texas Attorney General Opinion ( 1952 )

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