Untitled Texas Attorney General Opinion ( 1947 )


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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