Untitled Texas Attorney General Opinion ( 1964 )

OlSSEY E3iERA
OF TEXAS
Hon. Coke R. Stevenson, Jr. Opinion No. C- 269
Administrator
Texas Liquor Control Board Re: Whether the rotation of
Austin, Texas wine stock and performance
of other acts by a wine
wholesaler for the benefit
of a retailer is prohibited
by Section 3(b) of Article
Dear Mr. Stevenson: 666-17 V.P.C.
This is In answer to your inquiry concerning the above-
captioned question.
In your letter you said that you have discovered that in
certain instances where wine wholesalers have sold wine to
retailers, said wholesalers would from time to time assist the
retailer by rotating the older wine to the front of the shelves
dusting the shelves, bringing liquor from the retailers store-
room to the display shelves, and marking prices on the retailer's
containers; and you said that you have further discovered that
"a wholesaler of wine would, while rotating wine stock, attempt
to make his competitors wine unmarketable by wiping the bottle
tops of his competitor's wine with a kerosene rag, by unscrewing
the bottle tops and placing dog hair In his competitor's wine,
. . * and by engaging in other prohibited practices."
After giving those facts, you asked the following two
questions in regard to the construction of Section 3(b) of
Article 666-17 of Vernon's Penal Code.
"1. Assuming that wine Is not perishable, is
the rotation of wine stock on a retailer's sh.elves,
the dusting of a retailer's shelves, the bringing
of wine from a retailer's storeroom to place on
shelves and the marking of prices on a retailer's
wine containers by a wholesaler of wine prohibited
by the language of subsection 3(b) and (f) of Section
17 of Article I of the Texas Liquor Control Act?
"2. Assuming that wine Is perishable, is the
rotation of wine stock of a retailer by a wholesaler of
wins mt prohibited by the language of subsection
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Hon. Coke R. Stevenson, Jr., Page 2 (Opinion No. C-269)
3(b) and (f) of Section 17 of Article I of the Texas
Liquor Control Act?"
Since the perishability of wine has no bearing upon this'
opinion, we will answer the two questions as one.
The pertinent part of the statute In question reads as
follows:
“(3). It shall be unlawful for any person
who owns or has an Interest in the business of
a Distiller, Brewer, Rectifier, Wholesaler,
Class B.'Wholesaler, Class A Winery, Class B
Winery, or Wine Bottler, or any agent, servant,
or employee:
11. . .
"(b) To furnish, give, or lend any money,
service, or other thing of value, or to guarantee
the fulfillment of any financial obligation of
any retailer;
"(f) To offer any prize, premium, gift, or
other similar inducement to any retailer or con-
sumer, or the agent, servant, or employee of either."
The statute Is plain insofar as It makes It unlawful for
a wholesaler and other named arties to "furnish" a "service"
to a retailer. As the words P'furnish" and "service" are not
defined, and are words of common use, they should "be donstrued
Winder
in their natural, plain, and ordinary sl niflcation." --
v. Kin& 1 S.W.2d 587 (Tex.Comm.App. 1928 ).
The meaning of the word 'furnish" is so well known there
is no need to discuss it. Whether it was a "service" or some-
thing else In this case, It was "furnished" by the wholesaler
to the retailer.
Although the meaning of the word 'service" Is also well
known, we will cite some authorities showing that what the
wholesaler furnished the retailer in this case was anservice”.
In the case of Van Zandt v. Fort Worth Press, Tex .
359 S.W.2d 893, th S Court of Texas con- Art-
2266, Vernon's civ:l %``?fes that authorizes the recovery of
attorney's fees for "personal'services", and commented on the
word "service" as follows:
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Hon. Coke R. Stevenson, Jr., Page 3 (Opinion No. C- 269)
"Webster's Third New International Dictionary
gives a eneral definition of 'services'as 'action
at furthers some end or purpose: conduct
or use t!i
or performance that assists or benefits lsomethlng:
'deeds useful or Instrumental toward some object.,'
. . . In construing the state's Unemployment Com-
pensation Act the Supreme Court of Utah had occasion
in Creameries of America v. Industrial Commission,
98 Utah 571, 102 P.2d 300, 304, to differentiate
'services' and 'personal services’. The court said:
'In ordinary usage the term "services" has a
rather broad and general meaning. It:Includes
generally any act performed for the benefit of
another under some arrangement or agreement
whereby such actwas to have been performed. 'Phe
general definition of "service" as given in
Webster's New International Diot'ionaryis
"performance of labor for the benefit of another";
"Act or Instance of helping, or benefiting". The
term "personal service" indicates that the "act"
done for the benefit of another Is done personally
by a particular Individual."'
In the case of A. Kron Livery & Undertaking Co., v. Weaver,
280 S.W.54 (Mo.App.192b) the court discussed the word "servlcefl,
and said:
"the word 'service', as lexically defined,
means, among other things: The act of serving;
the deed of one who serves; labor performed for
another; assistance rendered; obligation conferred;
duty done or required; useful office; advantage
conferred; that which promotes interest or happiness;
benefit; avail; an advantage conferred or brought
about,;be~nefitor good performed, done or caused; use;
employment, things required for use."
In the statute we are herewith considering, towlt, Section
3(b) of Article 666-17, the word "service" means something in
additionto "money" or "other thing of value". It means an act,
a'deed of one who serves, labor, assistance rendered, a benefit
performed, or conduct of that nature, which is exactly what was
furnished by the wholesaler in this case. The performing of
the acts done by the wholesaler in connection with displaying
the wine in this case were unquestionably permitted by the re-
taller because he thought they were of benefit to him.
-1296-
Ron. Coke R. Stevenson, Jr., Page 4 (Opinion No. C-269)
As the w.ordsof the statute are clear, there is no
necessity to go into the question of the purpose of the
Legislature In enacting this statute.
SUMMARY
The rotation of wine stock on a retailer's
shelves, and the performance of other acts
by a wine wholesaler for the benefit of
the retailer in displaying his wine, is
prohibited ~b the language of Section 3(b)
647 of Vernon's Penal Code.
of Article6,z'
Yours very truly
WAGGONER CARR
Attorney General of Texas
By:
I. Raymond Wllllams, Jr.
IRW/fb
APPROVED:
OPINION CCUMITTEE
W. V. Geppert, Chairman
Robert 0. Smith
Norman Suarez
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone
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