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c c R-90 March 7, l-Y’+? Hon. Alfred M. Clyde Criminal Dlstrlct Attorney Tarrant County Fort Worth, Texas Opinion No. v-76 Re: Construction of Art. 1111-d. Chapter Bleven, A, Vernon's- Penal Code. Dear Mr. Clyde: Your request f".orour opl~nlon on the above captioned matter has been received by thinsDepartment. We quote from your letter as follows: "It is the desire of this office to ob- tain an opinion from your office on the con- struction of Article 1111-D, Chapter A, of the Penal Code of the State of Texas, ss to whether or not thls ArtZCle applies to the following state of facts: 'A concern, situated here I.nFort Worth, known as "Blue Bonnet Discount Stamp Company", sells their stamps to merchants throughout the State of Texas, who, in turn, give the stamps t0 cus- tomers. When the CUStotS0r COmpl8t8S a book which is given by the Blue Bonnet Discount Stamp Company to place Stamps therein, the customer, In turn, can pre- sent the book or books of stamps to the Blue Bonnet Company; and they, Ln turn, will give merchandise to redeem the book or books presented by the customer. This company does not sell~merchandise, but is engaged only in the bUS~naSS of redeeEpjng th8 stamps heretOfOr8 mentioned.' 'The question 1~s: Whether or not the eon- duct of the business as outlined above, comas within the purview of this Statute." On February 26, 1947, we requested that you furnish, thf+ office with additional facts, which you did by letter dated March 1, 1947, from wh?ch we quote: Hon. Alfred M. Clyde, page 2 v-76 'I1 . The Blue Bonnet Stamp Company keeps at its location in Fort Worth, the merchandise with which to redeeem the stamps, and also has other redemption stations in other cities in Texas. The only way this Company puts out mer- chandise is by redeeming stamps that haV8 been given away by the merchants. "2 * The holder of these stamps cannot re- ceive merchandise from the merchant who gives the stamps. They amst present the stamps to one of the redemption stations. “3 . The merchandise of the Company is displayed at the redemption stations, and each article has a value which is known by the Corn: pany as 'book value’. The merchandise runs from one 'book value', and up. Any person may appear in person at the redemption stations and select and receive at that time, any RPtiCle that the Company has , provided they have a suf- ficient number of books. Deliveries of merchan- dise are also made by this Company by mail. Un- der this system, the customer selects the desired article, orders by number from a pamphlet put out by the Blue Bonnet Company, and mails the required number of books containSJlg stamps to the Company. The Company,, in turn, will mail this particular item to the individual, which closes the trans- action, unless the item is damaged in,,shlpplng. If so, the Company will make it good. The Texas Chain Store Tax Statute (Chap. 400, page 1589, Acts 1st C.S, 44th Leg.) is codified as Art. lllld, Ver non's Annotated Penal Code of Texas. The parts of the Act w:th which we are concerned provide as follows: "38C. 1. That from and after the passage of this Act it shall be unlawful for any person, agent, receiver, trustee, firm, corporation, as- sociation or copartnership, either foreign Or domestic, to operate, maintain, open or establish any store or mercantile establishment in this State without first having obtained a license SO to do from the Comptroller of Public Accounts as hereinafter provided. 338C. 6, The provisions of this Act shall I. Hon. Alfred M. Clyde, page 3 v-76 be construed to apply to every person, agent, receiver, trustee,~ firm, corporation, copartner- ship or association, either domestic or foreign, which is controlled or held with others by major- ity stock ownership or ultimately controlled or directed by one management or association of ultimate management. "Sec. 7. The term 'store' as used in this Act shell be construed to mean and include any store or stores or any mercantile establishment or establishments not specifically exempted wlth- in this Act which are owned, operated, maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation; copartnership or as- sociation, either domestic or foreign,,in which goods, wares, or merchandise of any kind are sold, at retail or wholesale. "Sec. 8. Any person who, either for him- self or as the agent of any person, receiver trustee, firm, corporation, copartnership or as- sociation, shall operate or maintain any store or stores or mercantile establishment or mercan- tile establishments as defined in this Act with- out having displayed in a conspicuous place in such store or mercantile establishment the lic- ense fee receipt for the current year as re- quired in this Act shall be guilty of a misde- meanor and upon conviction thereof shall be fined in any sum not less than Twenty-five Dollars ($25); nor more than One Hundred Dollars ($lOO), and each day of such violation shell constitute a separate ~ and distinct offense." Under the facts you outlined, it will be necessary for us to determine whether or not the Bluebonnet Discount Stamp Company is a "store" or "mercantile establishment", as defined in Sec. 7 of the Act quoted above. In the case of Hurt, et al, vs. Cooper, et al, decided by our Supreme Court on December 1, 1937, reported in 110 S.W. (2d) 896,
130 Tex. 433, Judge Hickman, Commissioner, in speaking of "store" said: "The statute having defined the word, we are not concerned with its usual,meaning. Un- der that definition, a mercantile establishment, at which goods, wares, or merchandise of any kind, except those exempted, are sold is a store and is Hon. Alfred W. Clyde, page 4 v-76 taxable as such, end this even though it may also~be a distributing point . . , :convepsely, a mercantile establishment at which no sales are made 1s not a store, and therefore not taxable. The test is whether sales of goods, wares& or merchandise are made at the place . . ~ . In Continental Paper Bag Company, et al, vs. Bos- worth, Corn. App., Sec. B,
276 S.W. 170, Justice Short said: "In American usage, the word 'store' when employed to designate a place of business, is a broad one. It signifies not merely a warehouse, or storeroom, but may include in its meaning a business establishment where personalty is kept and sold, and incidentally gotten in salable condition." I In Veasey Drug Company, et al, vs. Bruza$ et al, 37 Pacific Reporter, 26, 294, the Court said: "The claimant presents no authority defln- lng the specified term 'wholesale mercantile establishment' es used in our statute, and we have found none, however, when the separate words composing that expression are considered in their usual, ordinary and natural use and meaning, no difficulty is encountered in arriv- ing et the meaning of the statutory term. Thus from all of the definitions the word 'establish- ment' means an Institution, place, building, or location. Its meaning, of course, may vary and does vary with the uee of the word. The word 'mercantile' in Its ordinary acceptance means pertaining to the business of merchants, and Is concerned with trade or buying end selling of merchandise. People vs. Federal Security Com- pany, 255 111. 561,,
99 N.E. 668, 88, H. H. Kohlsaat and Company vs. O'Connell, 255 111. 271,
99 N.E. 689. In Carr vs. Riley, 198 &LSS. 70,
84 N.E. 426, 428, 'mercantile' is defined thus: 'Of or pertaining to merchants or the traffic carried on by merchants; having to do with trade or commerce, trading, conxnercial'. Thus while the word 'establishment' may mean almost any kind or character of institution, location, building, or place, yet its meaning is greatly restricted when used following the Hon. Alfred M. Clyde, page 5 v-76 word 'mercantile'. And the expression 'mercan- tile establishment' must mean and refer to an institution of mercantile business, or place, building; or location where thg‘mercantile busi- ness or the buying or selling of merchandise Is conducted or engaged in. one mercantile bUSin8SS or establishment may differ from another just as one merchant may differ from another merchant as to the character of business engaged in. So we have retail merchants or retail mercantile establishments on the one hand, and wholesale merchants or wholesale mercantile establishments on th8 other hand. "A mercantile establishment is a place Where the buying and selling of articl‘es of mer- chandise is conducted. Hotchkiss vs. District of Columbia, 44 App. D,C. 73. "The'term 'mercantile bUsin8S.9' is defined to mean 'the buying and selling' of erticl8s of merchandise as an employment' in Grayham v. Hen- dricks, 22 L. Ann. 52x* In your related facts, the subject company redeems the book or books of stamps in merchandise; consequently, It is not necessary for us to define goods, wares or merchandise as set forth in the statute. We come now to the word "sale! In,37 Tex. Jurls., page 69, Under Sec. 2 of the subject "sales' the following defi- nition is given: "A 'sale' may be defined as a transfer of personal property from one p8rSOn to another for a price in money or for.property of an agr88d money value. The Uniform Sales Act defines 'a sale of goods as 'an agreement Whereby the seller tranS- fers the property in goods to the buyer for a con- sideration Called the price.' The deflnltlon implies that there must be not only en 'agreement', but also a present 'transfer' of property, or 'passage of title', from seller to buyer, either absolute1 Or conditionally, (but not necessarily a delivery 7 , end the payment of a price, or e promise - given or implied - to pay." In Johnson vs. State, Tex. Ct. Crim. AQQ., 55 5. W. 968, decided February 21, 1900, Brooks, Judge said: Bon. Alfred M. Clyde, page 6 v-76 "The Court defined a sale as follows: 'In law, a sale 1s the agreed transfer of prop- erty having aome other value to another for a valuable consideration. A sale may be shown by facts and circumstances, as well as by direct proof. The valuable consideration above men- tioned may not be in money, but may be any article of value.' We think this definition is correct.' In L. B. Woods and Company vs. Half, Weiss Company, 44 Texas, 633, the Court said: !'Asale imports and necessarily carries with it a chnge of ownership, (Pars. Mere. Law, 46) 1, . . . D Whatever rule be adopted, it may be sometimes difficult to apply it, but we can- not doubt that the true principle is this: every sale transfers the property, and that is not a sale which does not transfer the property in the thing sold; but this property cannot pass, and therefore the thing is not sold unless, first, it is completed and wholly finished, so as‘ to be in fact and in reality the thing purporting to be sold; and In the second place, it must be SO distinguished and discriminated from all other things that it is certain, or can be made cer- tain, what is the specific thing the property in which is changed by the sale. If the transaction be deficient in either of these points, it is not a sale, although it may be a valid contract for a Suture sale of certain articles when they shall be completed, or when separated from others." In Gay vs. Hardeman,
31 Tex. 245, the Court said: "What constitutes an actual sale of per- sonal property?' It Is an agreement between the seller and the buyer upon the consideration or price, either in cash or upon a stipulated credit, end a delivery of the property. When so delivered, the sale Is consummated and the right of property becomes absolute in the buyer, and the seller has no longer any more control over it than the rest of mankind. But it is pretended that at the time of the sale a lien was reserved or retained by the seller. This was impossible by the common law in regard to personal property, because an actual or constructive delivery was necessary to effectu- ate a sale of personal property. And when this Hon. Alfred M. Clyde, page 7 v-76 delivery took place the right of property was absolute in the buyer, and subject to any future alienations he might choose to make of it." With reference to the definition of "retail" and "wholesale", Holmes, Circuit Judge, in White Motor Company vs. Littleton, et al, C. C. A., 5th Circuit, decided December 12, 1941, 124 Fed. (2d) 92, in speaking of the Fair Labor Standards Act, said: "The word 'retail' is not defined by the Act. Given its common and ordinary acceptation when used in sales parlance, it means a sale in small quantity or direct to the consumer, as dis- tinguished from the word 'wholesale', meaning a sale in large quantity to one who intends to re- sell. The character of the sale is not altered by the use to which the consumer may put the pur- chased commodity. These sales were preponderantly retail although the products sold were used sub- sequently for commercial purposes." In Veazey Drug Company, et al, vs. Brunza, et
al, supra, the following.was said: "The term 'wholesale' or the selling in or by unbroken parcels is distinguished from 'retail' or dividing into smaller quantities and selling direct to consumers" in Gorsuth v, Butterfield,
2 Wis. 237, and also in Kentucky Consumers Oil Company vs. Commonwealth,
192 Ky. 437,
233 S.W. 892, and in Great Atlantic & Pacific Tea Company vs. Cream of Wheat Co., (C.C.A.)
227 F. 46. "A wholesale dealer is one whose business is the selling of goods in gross to retail deal- ers, and not by the small quantity or parcel to consumers thereof." State vs. Lowenhaught, 79 Tenn. (11 Lea) 13;. Webb v. State, 79 Tenn. (11 Lea) 662. In Sperry & Hutchinson Co. vs. Mechanics' Clothing co., 135 Fed. Rep. 833, the Court said: "Upon consideration of the allegations of the bill as to the nature of the trading stamps, it is apparent that the only purpose for which they are issued to collectors is for redemption; that the only promise made by the .. .. Hon. Alfred N. Clyde, page 8 V-76 Sperry & Hutchinson Company to the public in re- lation to these stamps is that it will redeem them if procured from authorized merchants; and that the collector acqui.red only such rights as are expressly or by fair implication promised him by the company. “A trading stamp is not ordinary property. it is sui generis. It represents a somewhat com- plicated transaction, and, from Its nature, I think there are necessary limitations upon the modes in which it may be transferred . . . By contract between the complainant and the merchant, the title to the stamp does not vest in the mer- chant who issues it but remains in the company until It has been issued in regular course to a customer of the merchant. The customer is expraes- ly offered only the right to redeem the stamp, and impliedlg the right to transfer it for redemp- tion. A stamp is not merely a token of the com- pany's obligation to redeem it, and of the right of the holder to redemption, but it is also a token or an instrument of another transaction in which the trading stamp company has an interest, and from which it derives its entire profit and its recompense for its outlay in establishing the buai- ness e o o . . . . "The trading stamp, when issued, represents a closed transaction between the merchant and the company, as well as an outstanding obligation to redeem the stamp. As a token or voucher of the sale and use. of so nmch advertising, the trading stamp is necessarily a consumable article - an article designed for a single use in an advertise- ing scheme. . O . . "THe trading stamp is an artificial crea- tion. The company, having created It and having created a value for it, may dispose of It on such terms as it sees fit. It may in the first instance restrict thee right to issue it for ad- vertising purposes to such persons as it my select, and to such persons as are villing to pay for it. The public is entitled to receive it upon the terms offered, namely, that it 1s ex- changeable for goods. But, it Is asked, why, if the right of a customer to transfer it is conceded, may he not transfer it in any mode he pleases, and give It as an advertisement if he sees fit? . Hon. Alfred M. Clyde, page 9 v-76 A sensible . - answer to this question, I think, is trl1s : Because ne thereby appropriates _ .to him- self the tradlng stamp company's legitimate share of the transaction. In the trading stamp scheme or plan, as explained In the books, there are designed to be three parties - the customer, the merchant, and the trading stamp company. The customer Is to acquire, at his benefit, a redeema- ble stamp; the merchant is to acquire, as his benefit, a trade advantage resulting from issuing the stamps at his shop; the trading stamp com- pany's benefit is the money paid to it by mer- chants for the priv%lege of issuing the stamps * . . . . .o a "While a transfer of ordinary property by the owner upon any terms usually deprives other persons of no rights, this Is not always the case with the trading stamp. While it may be transferred In any way which confines Its use within the purpose for which it was issued, it may not be transferred in such a way as to de- stroy its value as an instrument of special trade advantage or advertising company, or adver- tlsing, or as to deprive the company which created the value of the stamp, and which has assumed the obligatFon to redeem it, of its right to compensatlo? for expenditures and for redeem- ing the stamp. In Sperry & Hutchinson Co, vs, Fenster, et al, District Court, Eastern District, New York, decided January 16, 1915, 219, Fed. Rep. 755, the Court said: "The right to redeem the stamps is a property rLght transferable by possession while the license to use them for advertising purposes is not transferable without compensation'to the person qrantlng that right, viz: the plaintiff herein. In 10 Tex. Juris. p0 111, Sec. 64, consideration is defined as follows: "A consideration may be defined to be something which fs given in exchange, something which is mutual, or something which is the ln- ducement to the contract. It must be a thing which is lawful and competent in value. It is that which Induces the promise or the price' paid for the promiser's undertaking." Hon. Alfred M.~Clyde, page 10 v-76 In 10 Tex. Jurls., page 122, Sec. 71, appears the following: "A valuable consideration may be either a benefit to the promisor or a detriment to the promissee, - or stated in another way, it may consist of some right, interest, profit, or benefit accrui~ng to one party, or some forebear- ante, loss or responsibility given, suffered or undertaken by the other. Again, to constitute a consideration, either some benefit must flow to, or some injury must b$ rec,eived by, one or the other of the parties. In the light of the decisions and laws set forth above, and inasmuch as a transfer of merchandise for a valuable consideration (the.right to redeem the stamps for merchandise) occurs, it is our opinion that the trading stamp company you named comes within the definition of "store" or 'mercantile establishment" at which goods, wares or merchandise of any kind are sold, at retail or wholesale, and is, therefore, subject to the provisions of Article lllld, Penal Code of Texas. SUMMARY A trading stamp company which redeems trading stamps, with merchandise It keeps in stock for that purpose, is a "store" or "mer- cantile establishment" within the meaning of Article lllld, Vernon's Penal Code, and is subject to the provisions of that Article. Very truly yours, ATTORNEY GENERAL OF TEXAS By s/J. A. Amis, Jr. J. A. Amis, Jr. Assistant JAA:rt:mj :Wc APPROVED MAR. 7, 1947 s/Price Daniel ATTORNEY GENERAL APPROVED OPINION COMMITTEE BY-5 BWB CHAIRMAN
Document Info
Docket Number: V-76
Judges: Price Daniel
Filed Date: 7/2/1947
Precedential Status: Precedential
Modified Date: 2/18/2017