Untitled Texas Attorney General Opinion ( 1942 )

Honorable William J. Tucker
Executive Secretary
Game, Fish & Oyster CommFsslon
Austin, Texas
Dear Sir: Opinion NO. 0-4861
Re: Under the facts submitted, should
the Simms Food Market be required
to procure a wholesale fish deal-
er's license?
You have requested the opinion of this department
on the above stated question, based upon a statement of facts
which we have taken the liberty of summarizing as follows:
Mr. Walter Sitmnsoperates In the City of Austin a
business house known as Simms Food Market, at which he makes
sales at retail of aquatic products, and which Is covered by
a retail fish dealer's license. He also owns and operates
several trucks, from which sales of fish are made at whole-
sale. The drivers of the trucks, operating from the trucks,
take wholesale orders for aquatic products, and make deliver-
ies from the trucks in fulfillment of such orders. Each
such truck is covered by a wholesale truck dealer's fish ll-
cerise.The question whether Mr. Slmms Is also liable for the
payment of a wholesale fish dealer's license on his place of
business in Austin arises from the following additional facts:
A. The reta store in Austln,fs also headquarters
for the wholesale trucks. The fish with which the wholesale
trucks are supplied are bought by and shipped to the Slmms
Food Market, and there parcelled out to the wholesale trucks,
as the trade of each may require.
B. Sometimes a wholesale truck driver will take a
wholesale order for aquatic products, and then, instead of
filling the order by a delivery from the wholesale truck,
will ship the order tomthe customer from the Simms Food Mar-
ket in Austin by express or common carrier truck line.
The f'ollowlngprovisions of Article 93&,Revlsed
Penal Code of 1925, are applicable to the problem presented:
"Section 1. The following words, terms and
- --
Honorable William J. Tucker, page 2 o-4861
phrases used in this Act are hereby defined as
follows:
11
. . . . .
"(b) A 'Wholesale Fish Dealer' is any per-
son engaged in the business of buying for the pur-
pose of selling, canning, preserving or process-
ing, or buying for the purpose of handling for
shipment or sale, fish oroysters or shrimp or
other commercial edible aquatic products, to re-
tail fish dealers, and/or to hotels, restaurants
or cafes and to the consumer.
"(c) A 'Retail Fish Dealer' Is any person
engaged In the business of buying for the purpose
of selling either fresh or frozen edible aquatic
products to the consumer.
It
. . . . .
3ection 3. The licenses and the fees to
be paid for the same are hereby provided for in
this Act and are as follows:
I,
. . . . .
11'
a. Wholesale Fish Dealers License, fee.
for each place 'of business, Two Hundred Dollars
($200 .oo) .
"2a. Wholesale Truck Dealers Fish License,
fee for each truck, One Hundred Dollars ($100.00).
II
. . . . .
"11. Plaoe of business, as used In this
Act, shall Include the place where orders for
aquatic products are received, or where aquatic
products are sold, and if sold from a vehicle, the
vehicles on which, or from which, such aquatic pro-
ducts are sold, shall constitute a place of busl-
ness. . . . (As amended, Acts 1934, 43rd Leg.,
3rd C. S., p. 83, Ch, 40, Sec. 1; Acts 1935, 44th
Leg., p. 808, Ch. 345, Sec. l)."
As polnted out by you, nowhere in the law is the
phrase "Wholesale Truck Dealer" defined.
A careful reading of the above provision relating
Honorable William J. Tucker, page 3, o-4861
to 'place of business" convinces ua that where aquatic pro-
ducts are sold only &om trucks, it is not Intended to levy
a license fee upon the warehouse or other place where the
fish are received and distributed to the trucks,'ln addition
to the license fee levied upon each truck. Thus, under the
facts stated in “A” above, atandlng alone, the Slmms Food
Market is not required tD purchesb a Wholesale FPah Dea'ler's
License, In addition to the truck dealer's licenses.
But the facts utlder "B" above present a different
sltuatlon. Under those facts, the aquat~icproducts are not
sold on or from the trucks -- the only use made of the trucks
being to permit the salesmen to call upon customers and take
orders. The sales are in fact made from the business house
in Austin -- wholesale shipments being made from It direct
to the customers by common carriers. To permYt such a busi-
ness to be conducted by one who possesses only a Wholesa~le
Truck Dealer's Fish Llcenae, for whi'chhe has paid $100.00,
would be an unjust dlscrimlnatlon agalnat one who .had pald
$200.00 for a Wholesale Fish Dealer'.sLfcenae, for it would
permit the purchaser of the $100.00 lrcense to do evergthlng
which the purchaser of the $200.00 license Fa permItted to
do, and more besides.
Article 7, Penal Code of 1925, provides:
"This Code and every other law upon the aub-
ject of crime which may be enacted s'hallbe con-
strued,according to the plain Import of the I;an-
guage in which It is written, without regard to
the distinction usually made between the con-
struction of penal laws and laws upon oth%r sub-
jects; and no person shall be punished for an
offense which is not made penal by the plain im-
port of the words of a law."
"As regards the construction of e statute,
it la presumed that the Legislature Intended that
it should be given a just and reasonable inter-
pretation." 39 T. J. 2117 (citing Leaey v. State
Banking Board, 118 Tex. 91, 11 S. W. (28) 496.)
"It Fa not presumed that the Leglalature
intended to do or re uire an absurd or unfair
thing." 39 T. J. 24,8 (citing Davis v. Payne (Clv.
App. 179 S.W. 60; City of Tyler v. Texas Em-
players' Ins. Assn. (Corn.App.) 288 S.W. 409,
rehearing denied 294 9. W..'l95,and Oden v. Vatea,
119 Tex. 76, 24 5. W,. (28) 381.)
Honorable Wllllam~J. Tucker, page 4 o-4861
It is therefore our opinion that, under the facts
stated In 'B", above, the Slmms Food Market is required to
purchase a Wholesale Fish Dealer's License.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/W. R. Allen
W. R. Allen
Assistant
WRA:db:wc
APPROVED OCT 29, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman