Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTlN
~~OVLRSLLLfRs
*,Te”N*Y QCNLrnAL
.
yr. A. B. Conner
Dfreotor, Texan Agrloultural
~periment Station
Agrioultuml and Eeohanloal College or Texam
College Station, Taxan
Dear lqZ,COMOr:
ter being taxed and
au an ingredient in
or
another mixed reed
er,
Is the manufaotured
0 be taxed and tagged,
, 194b, you request the
ollowlng raotual altuatlon
e adninirtratlon oi the Tezas
a8 arimn regarding the neoeaslty
to ml114 toeda being rhipped
purposes in the manufaoture Of other
ed iOr man9 pears that ruoh imod 8hould be
&gad and that when this mlllod Bed was in
raoture a mlxrd reed, the nSzed rred 80
inantiaoturod8hould be regiatorsd an6 taggod regardless or
the iaot that the milled ingrediontahad already been
regletered and tagged in oompllanor with the law to ahow
1ta quality.
4c
yr. A. 3. Conner, page 2
"1 am adrlsed that thr UnIterma Ml18 and the Bswlsp
Hills or Fort Worth hold that suoh a roqulrsmant as wo
hare mado IS double taxation, OS loially when the mllled
read, suoh as oorn gluten meal, P8 shipped In bulk In
oarload lota and acoompanlsd by tags. Wo hare held that
thr oonssrn mt!%nUiaOturlngthe gluten msal was a manuiaoturrr
and therefore was subjeot to the tax on the rills6 pmduot
he produoed and sold In the State. 'X8hsve also held that
when the Unlvsrsal Mills or Bswloy Mills or any other oonoern
used suoh a produot a8 gluten meal as an lngrsdlent in the
manuiaoturs of another ised that the oonoern 18 in the sense
or the law a manufaoturrr of a nsw produot an& that when
suoh produot Is offered for sale or sold on the market the
tax must be paid.
"1 snolose herswlth a 00~9 of an opinion rendered on
a rlmilar oass on Ootober 1, 1915 by C. C. YoDonald,
Assistant Attorney General, and also a 00~9 of a letter
dated November 13, 1929 rrom Paul D. Pago, Jr., AssIstant
Attorney General, In whloh he holds to the same opinion
as that renders6 in 1915.
"Tha questions we wish to put berore you are:
"1. When a milled reed, suoh as gluten meal, 18
shipped Into thla State in bulk In oarload lots to be used
as an Ingredient tn the manufaoture of another mixed ised,
Is ths milled read to be SO used subjeot to tax?
“2. When an Ingredlsnt, suoh as gluten .meal,has
already been taxed and tagged as suoh Is used as an ingredient
In the aanuraoture or another mixed feed, Is ths manufaotured
reed subjeot to the reed tax?
"3. When a mIlled reed, suoh as gluten meal, is shipped
Into the state in bulk In carload lots and taxed and tagged
and later used as an ingredient of another mixed teed and
the reed so mntiaotured is taxed and tagged, is there a
question or double taxation involved?
"I will appreolate 9our rendering us an opinion on
this matter at ths esrllest possible dats in order that I
may prooeed In aooordanor with ths law In admlnlsterlng the
Texas Pure Feed Law, (Title 17, Chap. 13, Artioles 1489-1498,
lno., or the Penal Coda)."
4io
yr. A, B. Conner, page 3
Thr following srtlolss of Title 17, Chapter 13,
~srson’s Annotated Penal Code, 1925, are applioabls to the
fsotusl sltuatlon art forth abors and must bo oonatrued
together to arrive at a proper oonstruotlon of thr questions
~rolr.6.
Artlole 1489, *Tw and oertlrloato* is as rollows:
*Every lot or parool of isedlng sturt, us86 ror
feeding iarm llre stook, sold ordered or expossd ror
i thin the State, ahall hare
sale In this State, tar uss~~w
attaohed a tag desorlbed In artlols 1492, oarrylng a
plainly printed statement alearly and truly oertlrylng
the number of net pounds Of issdlng rtutr in the paokage,
stating the name or names 0r mattrial or whloh suoh weight
Is oomposed where the oontents are of a mixed nature, the
naw, brand or trade qk under whioh the artlols Is sold,
the nams and addreD Of the mMufaOturer or importer, the
plaoe or manufaoture, suoh lnformstlon as Is required by
artiole 1497, ii say, . . .I
Artlole 1490 dstlnes the term “Peedlng SturP:
“The term ‘feeding 3tufi,@ ..aused in this ohapter,
Is defined to mean and lnolude wheat bran, wheat shorts,
linseed meal, ootton seed meals, pea meals ooooanut meals,
gluten.meals, gluten fseds, maize feeds, staroh reed, sugar
reeds, dried brswer’s grains, malt sprouts, hominy reeds,
oeraallne reeds, rloe meals, rloe bran, rloe polish,,oat
feeds, oorn and oat ohops, oorn ohops ground beer or
mlxsd rlsh reeds, and all other materials of eimllar mture,
but shall not lnolude hay or atraw, the whole seed or grains
of wheat, rye, barley, oats, Indian corn, rloe, buokwheat
or broomcorn, or any other whole or unground grains or seed.a
Xrtlole 1491 requires the filing of a statement and the
deposit of ssmples:
vetore any resdin(lmturr Is so otrered or exposed ror
sale, the Importer, mnuraaturer or part9 who oauses It to
be aold, or offered for sale within this State for use
within the state, shall, ror eaoh feeding stuff bearing a
dlstingulshing name and trade mark, file with the dlreotor
of the Texas Agrloultural Zxperlment Station a oertim36 oopy
or the statement namad in artlole 1489, l . 0”
41 .l
m, A. B. Conner, page 4
Art1 01l 1492 protldes r0r the paymsnt 0r tu sad the
sflixlng oi the ta6:
“The mam&OtUrer, importer, agent or sellor or saoh
rsedlng stuft, shall before the artlols Is oitsred ror sale,
pay to the dl?eotor of the Texas Agrloultural Sxperlmsnt
Station, an lnspsotlon tax Or ton Oat8 iOr eaoh ton of ruoh
rwdlng aturr sold or ortered for sale In this Stats ror
use within the State, ant shall affix to laoh lot shipped
in bulk, and to eaoh bag, barrel, or other paokage or suoh
roeding stutr a tag to be rurnlshed b7 said dlreotor, stating
that all sharges speolrled In this art1010 have beon paid.
The direotor of said Experiment Station Is heraby empowers4
to presorlbe the form of suoh tags, and adopt suoh regulations
as may be neoessary for the enforoemsnt of this law, Whsnever
the manufaoturer or importer or shlppsr of a feeding stufr
shall hate filed a atatement made as provided for in artlole
1489, and paid the lnspeotlon tax, no agent or eellor or said
manufaoturer, importer, or shipper shall be required to rile
suoh statement or pay iuoh tax.”
Artlols 1493 prorides for the penalty for failure to
arrlx the tag or label:
RAny nanufaoturer, __ or agent!
importer, -- Iselling, offering
or exposing for sale, any reecung sturr, wltnout the statement
requlrod by artlole 1489, and the tax tag requlred by the
pressding artlole, or with a label stating that said feeding
stutr oontaine a larger peroentage or protein, rat or nltrogen-
rree extraot, or a smaller psroentage of OrUds fiber, than Is
oontained therein, shall be fined not less than one hundred
nor more than rive hundred dollars.a
Artlole 1495 detlnes the term “Importer*:
*The term ‘Importer’ means all persons as shall bring
into or order ror sale within this State reedin:: sturt
manufactured without this State.*
Non8 of the foregoing Artlolea have ever been offlolally
oonstrusd by the appellate oourts of Texas sin06 the reoodlrioatlon
thenof In 1925.
41
gr. A. 8. Conmr, page 5
Under the prwlslons of Artlola 1492, supra, In
oo~eotlon with the other art10188 herein olted, the tu
moue& IS purely an Wlnspebtlon tar” for the purpose or
lssurl~ the buyer of the ieod aturis or mixed roods within
tl~ State oi Tuas, ilrat, as to the mturo of the matsrlala
So ortered for malo) sooond, as to the protein quantity thsroor;
and third, that they are not adulterated. This Is In no sense
u import tax or a we tax, but Is purely an lnepeotlon tax
md has been held by thr Supreme Uourt of the Vnltod States
sot to be an Infrlngemsnt on the Interstate Comaeroe Claus0
or the Constitution or the United States. It will be noted
that throughout the foregoing artioles the term aselling,W
notiering or exposing ror *al*,* and partloularlp the words
norrerlng Zor salr,* are StrOsO& Thareiore, unless the
produet la ofrered for sale, either In kind as imported or
Jxed with other produots, no tax oould be Imposed, slnoo
so lnapsation of the produat would be necessary tea ths
proteotlon of the buyer.
Ir the milled reed lmportsd into this Stats in bulk
by the importer under the protlslons oi Artloles 1492,tifP5
and 1490 Is offered for sale in its ldentloal form by
Importer, than unquestionably ths tax must be paid and the
%ag atrlxed In aooordanoe with the provlslons oi suoh articles.
It, however, the milled is84 is imported into the
State 15 bulk In oarload lots to be used as an Ingredient in
the manufaoture of other mixed ieede by the importer, and Is onl:
so used, then no tax would be required slnoe a tax would br re-
quired or the importer as a manutaotursr after suoh ~esda had
been mixed with other reed8. The dominant purpose or the
lnspeotlon Is to determine the oruds protein quantity of the
imported reedsturts, If Ordered for salst but If uaed by the
Importer ror the manufaoture of another &he& reed, whloh reed
when so mixed mat bs lnapsoted bsiors being oriered for sale,
then no neoeasity exlrrtsfor the lnspeotion of the original
bulk reedstufrs, ii not orrered ror sale as suoh.
Therefore, the anmer to your first question based
upon the foregoing assumptions or r80t Is '(No.'
413
b!r,A- 3. Conner, page 6
When the import& _ milled reed has~~lreadp been taxed
urd ta6ssa as woa, ula 18 urea as an ingrrarea in the mm-
faoturr of another mixed issd 8 new produot has been orsatsd
whioh noossaltates an lnspsot~on ti dstrrmlns whether or not
oontalns the nsdossb~ paotolns and Is tree
on, as rsqulnd by the preosdlng artloles. This
Is a mMUfaOtUr0 of an entire19 nsw produot and as suoh the
Use by th0 mamfaOtUr8r Of the i8portod issb stuffs subjsots
it to the noossalty or lnspsotlon, lrrsaps@tlve of whethsr or
not ths original Imports4 toedstuffs hate already been lnspeotsd
snd tagged snd a tax rlxed thereon.
The lnmer to your seoond qusstlon Is therstors *Yss.~
When milled feed has bsen shipped lnto Texas In oar-
load lots, the tax paid thsmon, and the tag arrixed, au6 it la
later %ssdd* as an lngrsdlsnt oi another nixed reed, and the
read so manuiaotured Is tagged and taxsd, t&no Is no question
of doubls taxation, slnoo, as stated in the ansusr to questlona
two and three lbwo, the lnapsotlon or the lmportsd reedsturrs
In bulk has bsen -64, and tha tax pal4 thsrstor for ths bsnsflt
or ths bver, the same ha+- been orrersd for’salo or sold,
but the original laportsd feed stuif8, having assumed a new
oharaoter by reason or having boon mixed with other iesde,
there la no double taxation, slnoe the lnspeotlon tax has been
paid ror the purpose of lnspeotlng an entirely separate and
distlnot produot.
The anmer to the third questl6n Is therefore uN~.N
Yours very truly
ATTORNEY
O- F TKKAS
A
C, K, RIohard
Aaslstant
CKT3 : A&ill